Cambridge Massachusetts Building Expert Directory

Colorado homebuilders target low-income buyers with bogus "affordable housing" bill

March 05, 2015 — Jesse Howard Witt – Acerbic Witt
“Affordable housing” is the latest catchphrase for Colorado homebuilders seeking immunity from warranty claims and repair requests. In 2013, the homebuilders’ lobby said it was about public transportation. In 2014 they said it was about community building. Now it’s 2015, and the lobbyists are claiming that a lack of affordable housing is the reason why politicians should eliminate consumer protections for homebuyers. The Colorado Senate recently announced the introduction of SB 15-177. If passed, the bill will make it illegal for homeowner associations to hire construction experts or lawyers unless they can first satisfy a complicated disclosure and voting process. Although sponsors portray the bill as an innocuous measure that merely requires more community involvement, its provisions have actually been tailored to take advantage of recent court decisions that make it difficult for homeowner associations to vote on measures outside of a meeting or act quickly to resolve construction defect disputes. The intent is to make it nearly impossible for homeowners to retain construction experts or legal representation before the statute of limitations period expires, thereby making homebuilders immune from any potential claims. The bill will also eliminate the right to a jury trial in many cases, forcing any disputes that overcome the procedural hurdles into costly, private arbitration proceedings. The sponsors argue that these measures are necessary to encourage builders to erect more cheap condominiums. Read the court decision
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Reprinted courtesy of Jesse Howard Witt, The Witt Law Firm
Mr. Witt welcomes comments at www.acerbicwitt.com

Condominiums and Homeowners Associations Remain Popular Housing Choices for U-S Homeowners

July 11, 2022 — Community Associations Institute
Falls Church, Va., July 06, 2022 (GLOBE NEWSWIRE) -- Maintenance-free, safety, and cleanliness are top features that make community associations a popular choice and lifestyle for millions of Americans. According to results from the 2022 Homeowner Satisfaction Survey, the overwhelming majority (89%) of homeowners and condominium association residents rate their overall experience of living in a community association as "very good" or "good" (67%), or neutral (22%). At a time when community matters most, the majority (87%) said they knew their home was part of a community association and nearly half (45%) said the association made them more interested in the home. Eighty-seven percent of respondents believe that their governing board "absolutely" or "for the most part" serves the best interest of the community. More than half of residents (68%) believe that rules in their communities protect and enhance property values. Results from almost identical national surveys conducted in 2005, 2007, 2009, 2012, 2014, 2016, 2018, 2020, and 2022 are strikingly consistent. The online survey of 1,507 homeowners and condominium association members nationwide with oversampling was conducted in in four states: Illinois, New York, North Carolina and Washington. About Community Associations Institute Since 1973, Community Associations Institute (CAI) has been the leading provider of resources and information for homeowners, volunteer board leaders, professional managers, and business professionals in the more than 355,000 homeowners associations, condominiums, and housing cooperatives in the United States and millions of communities worldwide. With more than 43,000 members, CAI works in partnership with 36 legislative action committees and 63 affiliated chapters within the U.S., Canada, South Africa, and the United Arab Emirates as well as with housing leaders in several other countries, including Australia, Spain, and the United Kingdom. A global nonprofit 501(c)(6) organization, CAI is the foremost authority in community association management, governance, education, and advocacy. Our mission is to inspire professionalism, effective leadership, and responsible citizenship—ideals reflected in community associations that are preferred places to call home. Visit us at www.caionline.org, and follow us on Twitter and Facebook @CAISocial. Read the court decision
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Quick Note: Attorney’s Fees on Attorney’s Fees

June 13, 2022 — David Adelstein - Florida Construction Legal Updates
In a recent case, the appellate court held that the attorney’s fees provision in the contract was NOT broad enough to entitle the prevailing party to recover attorney’s fees for litigating the amount of attorney’s fees. This is known as “fees on fees” which is when you can recover your prevailing party attorney’s fees when you are fighting over the quantum that should be awarded to you as the prevailing party. The attorney’s fees provision at-issue stated: “In any lawsuit to enforce the Lease or under applicable law, the party in whose favor a judgment or decree has been rendered may recover its reasonable court costs including attorney’s fees from the non-prevailing party.” Language similar to this language can be found in many contracts as a prevailing party attorney’s fees provision. However, this provision was NOT broad enough to recover “fees on fees.” As explained in this article, if this is a consideration, you can negotiate or include this provision into your construction contract by expanding the scope of the prevailing party attorney’s fees provision to clarify that it entitles the prevailing party to recover attorney’s fees in litigating the amount of attorney’s fees. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Get Construction Defects in Writing

December 11, 2013 — CDJ STAFF
Sometimes, even if a developer is willing to make a repair, sometimes the repair doesn’t get to the actual problem, according to Nicholas D. Cowie of Cowie & Mott, writing on his blog. He notes that “getting it ‘right’ the first time is important and written documentation is key.” He gives the example of “when a developer agrees to informally repair a window or roof leak, the ‘repair,’ as far as the developer is concerned, may consist merely of sending out a worker with a caulk gun to seal gaps that should have been protected with a solid flashing material during the original installation.” As a better course, he says that homeowner associations should “request a written description of the proposed repair” in order that it can be evaluated. This also allows follow-up to determine if the agreed-upon repair was done properly. And, although some homeowners associations would rather not have the original subcontractor repair their own work, here warranties often come into play. Read the court decision
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HOA Foreclosure Excess Sale Proceeds Go to Owner

August 15, 2022 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Over the last few years, the Arizona Court of Appeals wrestled with the question of who should receive the excess proceeds from a foreclosure sale. We’ve blogged about some these past unreported decisions here and here. Those decisions, somewhat inexplicably, required excess sale proceeds to be paid to senior creditors. As we noted at the time, these unreported (and non-precedential) decisions did not seem to make much sense in the context of debtor/creditor rights. Thankfully, a reported opinion finally sets the record straight. Excess sale proceeds should be paid downstream. In Tortosa Homeowners Assoc. v. Garcia, et al., No. 2 CA-CV 2021-0114 (Ct. App. Aug. 1, 2022), the Court of Appeals held that after the foreclosing lienholder is paid in full, then the excess sale proceeds should be paid to claimants in the order of their priority after the foreclosing lienholder. In other words, if a junior lienholder forecloses, then any creditors behind (i.e., junior to) the foreclosing creditor should be paid, and if all such creditors are paid, then the rest should be given to the owner. Creditors senior to the foreclosing creditor should not be paid anything from the foreclosure sale. This makes sense from a policy perspective, because the senior creditor retains its lien against the property and the bidder presumably took the presence of the senior lien into account when it made its bid for the foreclosed property. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

Statute of Limitations and Bad Faith Claims: Factors to Consider

May 16, 2022 — Anastasiya Collins - Saxe Doernberger & Vita
How much time do our clients have to bring a bad faith action against an insurer? Although we are not frequently asked this question, it is one that we constantly analyze before asserting a bad faith claim. To answer this question, we look to the statute of limitations, which is a law passed by a state legislative body that sets the maximum amount of time for a party to bring a claim based upon a particular cause of action. For policyholders, knowing which statute of limitations applies to their bad faith claim is critical because it indicates whether it is possible to initiate legal proceedings. In addition, it determines the amount in damages available in case of a successful resolution. Statute of Limitations in Breach of Contract vs. Tort Claims One key determinant of a statute of limitations for bad faith is whether the claim is brought as a tort or a breach of contract action. The consequence of framing bad faith as a tort is that a policyholder is not just limited to contract damages. The policyholder can also receive recourse for emotional distress, pain, suffering, punitive damages, attorney’s fees, and other damages that the court may consider appropriate. Unfortunately, however, not every jurisdiction allows plaintiffs to bring bad faith actions as tort claims. While, for example, courts in California, Colorado, and Connecticut allow bad faith claims sounding in tort, courts in jurisdictions such as Tennessee do not. Read the court decision
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Reprinted courtesy of Anastasiya Collins, Saxe Doernberger & Vita
Ms. Collins may be contacted at ACollins@sdvlaw.com

Jury Convicts Ciminelli, State Official in Bid-Rig Case

August 14, 2018 — Engineering News-Record
After a four-week trial but with less than two days of deliberation, a Manhattan federal jury convicted Louis Ciminelli, former head of the now-defunct Buffalo, N.Y., contractor LPCiminielli, and Alain Kaloyeros, the fired ex-head of SUNY Polytechnic Institute in Albany, N.Y., of fraud and conspiracy in a scheme to rig bids on a $750-million upstate New York manufacturing project. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

How to Mitigate Lien Release Bond Premiums with Disappearing Lien Claimants

May 20, 2019 — Scott MacDonald - Ahlers Cressman & Sleight PLLC
It is one of those dreaded business situations that plagues the construction industry, especially in times of economic downturn—what to do when a lower-tier entity files a lien against a property then disappears. It has happened to countless owners, general contractors, subcontractors, and even some particularly unlucky sub-tier subcontractors and suppliers. Here is how it arises: a project is moving along, then performance or payment issues arise, and a company that is over extended or unwilling to continue work stops performance, walks off the job, and files a lien against the property for whatever amounts were allegedly unpaid. Often, the allegedly unpaid sums were legitimately withheld due to a good faith dispute over payment/performance, and it is not unusual for the defaulting entity to not be entitled to any of the sums claimed in the lien. Regardless, the lien stays on the property, and pressure is applied from the “upstream” entities to the party who contracted with the defaulting entity to “deal” with the lien. Oftentimes, a contract will require the parties to “deal” with a lien by obtaining a lien release bond (“release bond”). For those lucky enough to not have encountered this issue, a release bond is a nifty statutory device whereby a surety agrees to record a release bond for the full claimed amount of the lien, with the release bond substituting in for the liened property, effectively discharging the property from liability under the lien. In other words, the lien is released from the property and attaches to the release bond. If the lien claimant recovers on its lien, it is technically satisfied by the surety providing the release bond (or the party who agrees to indemnify and defend the release bond). In exchange for delivering the release bond, the surety demands yearly premiums be paid on the release bond amount Read the court decision
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Reprinted courtesy of Scott MacDonald, Ahlers Cressman & Sleight PLLC
Mr. MacDonald may be contacted at scott.macdonald@acslawyers.com

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