Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado
November 23, 2020 —
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation BlogEarlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.” See Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2, cert. granted, No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). As detailed below, the Woodbridge II court concluded that the meanings of “adverse” in these two contexts are not coextensive—while “hostility” in the adverse possession context requires a claim of exclusive ownership of the property, a party claiming a prescriptive easement is only required to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Thus, the Woodbridge II court reasoned a claimants’ acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.
This significant ruling is at odds with a prior division’s broad statement, while considering a prescriptive easement claim, that “[i]n general, when an adverse occupier acknowledges or recognizes the title of the owner during the occupant’s claimed prescriptive period, the occupant interrupts the prescriptive use.” See Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006). Perhaps for that reason, Woodbridge II is currently pending certiorari review before the Colorado Supreme Court in a case that should provide some much-needed clarity on what constitutes “adverse use” in the context of a prescriptive easement. As we await the Colorado Supreme Court’s decision, I thought it worthwhile to provide a brief analysis of the Woodbridge II court’s deep dive into the nuances of “adverse use” in this field of Colorado law.
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Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
Insurer's Attempt to Strike Experts in Collapse Case Fails
February 03, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's efforts to exclude two of the insured's experts in a collapse case were unsuccessful. Hudon Specialty Ins. Co. v. Talex Enterprises, LLC, 2019 U.S. Dist. LEXIS 150148 (S.D. Miss. Sept. 4, 2019).
The insureds' building collapsed. The remaining portions of the building required immediate stabilization. The insureds hired Mr. Laird, an engineer, to prevent further property destruction. The insured designated Mr. Laird as a non-retained expert for trial. Mr. Laird's report claimed that the collapse was caused because the building had been re-roofed many times without removal of the degraded underlying roofing materials, thereby adding additional weight to the roof structure.
The insureds also designated Steve Cox as a non-retained expert. Mr. Cox was an architect who owned property neighboring the building that collapsed. He opined that the building collapsed because of the condition of very old mortar and not because of water standing on the building roof or because of roof repairs.
Hudson sought to strike these two experts because their opinions were inconsistent with the admitted facts. A document produced by the insureds stated that a large amount of rainwater had collected on the roof and the weight of the rainfall was the proximate cause of the collapse. Hudson claimed that this statement qualified as a judicial admission, removing the question of causation from contention. The court disagreed that the statement was a judicial admission because it did not form any part of the pleadings. The statement may have been an evidentiary admission that could be controverted or explained by the parties.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Vacant Property and the Right of Redemption in Pennsylvania
April 06, 2016 —
Suzanne Prybella – White and Williams LLPIn Pennsylvania, pursuant to the Municipal Claims and Tax Liens Act (53 P.S. §7293(a)) (the Act), the owner of a property sold under a tax or municipal claim may redeem the sold property at any time within nine months after the date of acknowledgment of the sheriff's deed by, in general, paying the amount of the debt. However, there is a caveat contained in the Act with respect to vacant property, which states that “there shall be no redemption of vacant property by any person after the date of the acknowledgment of the sheriff's deed.” (53 P.S. §7293(c)). In Brentwood Borough School District v. HSBC Bank USA, N.A., 111 A.3d 807 (Pa. Commw. Ct. 2015), a case of first impression before the Commonwealth Court of Pennsylvania, the court addressed the definition of “vacant property” under the Act and the timing of a petitioner to invoke the right of redemption with respect to vacant property.
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Suzanne Prybella, White and Williams LLPMs. Prybella may be contacted at
prybellas@whiteandwilliams.com
A Few Construction Related Bills to Keep an Eye On in 2023 (UPDATED)
February 20, 2023 —
Christopher G. Hill - Construction Law MusingsThe annual General Assembly session is now well underway here in the Commonwealth of Virginia. As is always the case, those in our fine state legislature have introduced with varying success a few construction-related bills. This post will list just a few without comment, and a big one at the end that will likely spur a post or two down the road here at Construction Law Musings:
HB1490:
Virginia Public Procurement Act; certain construction contracts; performance and payment bonds. Allows localities to allow a contractor of indefinite-delivery or quantity contracts, defined in the bill, who is otherwise required to furnish performance and payment bonds in the sum of the contract amount to the public body with which he contracted to furnish such bonds only the dollar amount of the individual tasks identified in the underlying contract. Such contractors shall not be required to furnish the sum of the contract amount if the governing locality has adopted such an ordinance.
UPDATE: Passed the House and is being considered in the Senate
UPDATE 2: A
substitute bill has passed both the House and the Senate.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Hawaii Court Finds No Bad Faith, But Negligent Misrepresentation Claim Survives Summary Judgment in Construction Defect Action
November 06, 2013 —
Tred Eyerly — Insurance Law HawaiiJudge Mollway, U.S. District Court Judge for the District of Hawaii, found the insurer was not in bad faith for allegedly leading its insured to believe that construction defects would be covered under the policy. The court, however, allowed the insured's negligent misrepresentation claim to survive summary judgment. Ill Nat'l Ins. Co v. Nordic PCL Constr., 2013 U.S. Dist. LEXIS 151748 (D. Haw. Oct. 22, 2013).
The insurer denied coverage when Nordic was sued for construction defects related to its construction of two Safeway stores in Honolulu. Prior to the issuance of the policies the Ninth Circuit had issued its opinion in Burlington Ins. Co. v .Oceanic Design & Constr., Inc., 398 F.3d 940 (9th Cir. 2004), which predicted that Hawaii appellate courts would rule that construction defects were not "occurrences." Nevertheless, Nordic's witnesses contended when the policies were purchased, they believed construction defects were covered. Specifically, Nordic thought the policies provided completed operations coverage for property damage arising out of Nordic's subcontractors' work.
Nordic further contended that only after the Hawaii Intermediate Court of Appeals decided in Group Builders, Inc. v. Admiral Ins .Co., 123 Haw. 142 (Haw. Ct. App. 2010) that construction defect claims did not constitute an "occurrence" did the insurer change its position and decide the policies did not cover construction defects.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Burden of Proof Under All-Risk Property Insurance Policy
January 31, 2018 —
David Adelstein - Florida Construction Legal UpdatesA recent Florida case, Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) discusses the burden of proof of an insured in establishing coverage under an all-risk property insurance policy. Getting right to this critical point, the court explained the burden of proof as follows:
1. The insured has the initial burden of proof to establish that the damage at issue occurred during a period in which the damaged property had insurance coverage. If the insured fails to meet this burden, judgment shall be entered in favor of the insurer.
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2. If the insured’s initial burden is met, the burden of proof shifts to the insurer to establish that (a) there was a sole cause of the loss, or (b) in cases where there was more than one cause, there was an “efficient proximate cause” of the loss.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Students for Fair Admissions: Shaking the Foundations of EEOC Programs and M/WBE Requirements
October 16, 2023 —
Denise Farris Scrivener - The Dispute ResolverOn June 29, 2023, the Supreme Court issued a landmark decision,
Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, holding that race-based affirmative action programs in college admissions violate the Equal Protection Clause of the Fourteenth Amendment. 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023). On July 13, 2023, thirteen state Attorney Generals, relying on Students for Fair Admissions, issued a joint letter to the CEOs of the Fortune 100 companies, urging the elimination of all race-based programs in EEOC and government and private contracting. On July 19, 2023, a Tennessee district court judge issued an injunctive order against the Small Business Administration’s 8(a) application program on the basis of the program’s race-based presumption of disadvantage. Ultima Servs. Corp. v. U.S. Dep't of Agric., No. 220CV00041DCLCCRW, 2023 WL 4633481 (E.D. Tenn. July 19, 2023).
The message to be taken from these developments: all race-based programs and, by extension, potentially all gender-based programs—including ones that require or reward participation of Minority Business Enterprises (“MBE”) or Women Business Enterprise (“WBE”) in construction programs—currently stand on shaky ground.
This post will explain the constitutional foundations at play, the decisions shaking things up, and why well-rounded dialogue is urgently needed to address the status of these programs before they’re dead in the water.
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Denise Farris Scrivener, Farris Legal Services LLCMs. Scrivener may be contacted at
denise@farrislegal.net
New Opportunities for “Small” Construction Contractors as SBA Adjusts Its Size Standards Again Due to Unprecedented Inflation
September 11, 2023 —
Hanna Lee Blake - ConsensusDocsThanks to the SBA’s November 17, 2022 adjustments to the size standards and monetary thresholds, a number of construction contractors will be able to retain their “small” status, and more contractors may benefit from federal assistance, programs, and contracts earmarked for “small” concerns. In the SBA’s view, small businesses should not lose their “small” status due solely to price level increases rather than from increases in business activity. It is anticipated that federal agencies may choose to set aside more construction contracts for competition among small businesses given the greater number of businesses that may be deemed “small” as a result of the SBA’s recent rule. In light of this, small construction contractors should consider whether it is prudent to register or update their existing profiles in the System for Award Management (SAM) to participate in federal contracting.
The SBA’s Statutory Mandate
The Small Business Act of 1953 (P.L. 83-163, as amended) authorized the SBA and justified the agency’s existence on the grounds that small businesses are essential to the maintenance of the free enterprise system. The congressional intent was to assist small businesses as a means to deter monopoly and oligarchy formation within all industries and the market failures caused by the elimination or reduction of competition in the marketplace. Congress delegated to the SBA the responsibility to establish size standards to ensure that only small businesses were provided SBA assistance. Since that time, the SBA has analyzed various economic factors, such as each industry’s overall competitiveness and the competitiveness of firms within each industry, to set its size standards.
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Hanna Lee Blake, Watt TiederMs. Blake may be contacted at
hblake@watttieder.com
