Fairfield Connecticut Building Expert Directory

Best Practices: Commercial Lockouts in Arizona

April 10, 2023 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

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Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

California’s Right to Repair Act not an Exclusive Remedy

August 20, 2014 — Beverley BevenFlorez-CDJ STAFF
Karen L. Moore of Low, Ball & Lynch in JD Supra Business Advisor analyzed “two decisions holding that California’s Right to Repair Act ('SB 800') is not the exclusive remedy for a homeowner seeking damages for construction defects that have also resulted in property damage.” If property damage occurs due to construction defects, a homeowner “may also pursue common law tort causes of action.” After providing a brief background of California’s SB 800 and Aas v. Superior Court (which precluded the Right to Repair Act), Moore discussed the results of Liberty Mutual Insurance Company v. Broofield Crystal Cove, LLC, followed by a review of Burch v. Superior Court. Moore commented that “[t]hese two cases will likely be used by homeowners to avoid application of the Right to Repair Act’s pre-litigation procedures.” Read the court decision
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Large Canada Employers and Jobsites Mandate COVID-19 Vaccines

November 08, 2021 — Scott Van Voorhis - Engineering News-Record
The push for COVID-19 vaccine mandates is gaining traction in Canada’s construction industry, with governments, large project sites and major employers setting new inoculation deadlines. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Why You Should Consider “In House Counsel”

September 22, 2016 — Christopher G. Hill – Construction Law Musings
We construction lawyers have occasionally taken it on the chin as one of the obstacles in the construction process. However, I have often argued what I believe to be true, that early consultation with a construction lawyer, before problems occur, is a great way for a construction company to avoid issues and to, yes, save money in the long run. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Another Colorado Construction Defect Reform Bill Dies

May 07, 2014 — Beverley BevenFlorez-CDJ STAFF
Colorado construction defects reform Senate Bill 220 died when “Senate President Morgan Carroll, D-Aurora, declined to call a second committee to hear” the bill, according to Ed Sealover writing for the Denver Business Journal. Sen. Carroll declared that the “bill backers” did not incorporate any of the “suggestions she or House Speaker Mark Ferrandino had given them.” “SB 220 would have required condo-unit owners to submit to alternative-dispute resolution such as arbitration or mediation if the unit developer required it,” Sealover reported. “And it would have required that a majority of members of a homeowners association agree to file a lawsuit, a standard significantly larger than the two-person bar that now must be met.” Bill Cosponsor Sen. Mark Scheffel, R-Castle Rock, “believes litigation reform” will become “an election issue and” that it “has strong momentum heading into the 2015 session.” Read the court decision
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Water Leak Covered for First Thirteen Days

April 11, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Florida Court of Appeals recently held the policy's exclusion for repeated water seepage over a period of fourteen days or more does not exclude loss caused by the seepage for the first thirteen days. Hicks v. Am. Integrity Ins. Co. of Florida, 2018 Fla. App. LEXIS 2616 (Fla. Ct. App. Feb. 23, 2018). Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Federal District Court Continues to Find Construction Defects do Not Arise From An Occurrence

May 10, 2012 — CDJ STAFF

Coverage for construction defects continues to be hotly contested in Hawaii state and federal courts. In a recent decision, Judge Mollway felt bound to follow the Ninth Circuit’s decision in Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d 940, 944 (9th Cir. 2004), where the court found construction defect claims arise from breach of contract, not from an occurrence. Judge Mollway’s most recent decision on the issue is Illinois Nat. Ins. Co. v. Nordic PCL Constr., Inc., 2012 U.S. Dist. LEXIS 58464 (D. Haw. April 26, 2012).

Nordic constructed a grocery store for Safeway. In addition to the grocery store, Nordic built a 165-space rooftop parking deck, retail shops and related improvements. After opening for business in 2007, Safeway experienced significant leaks. Safeway demanded that Nordic repair the parking deck. Nordic sent the demand letter to the insurer, who agreed to appoint counsel subject to a reservation of rights.

Safeway filed suit against Nordic in state court alleging, among other things, breach of contract and negligence. The insurer provided Nordic with a defense, but Nordic hired independent counsel.

The insurer filed for declaratory relief in federal district court.

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Comparative Breach of Contract – The New Benefit of the Bargain in Construction?

October 26, 2020 — Steven Hoffman - Florida Construction Law News
Ask most Florida Construction Law practitioners, and you will likely hear that liability may not be apportioned in “pure” breach of contract cases via the Comparative Fault Act, section 768.81, Florida Statutes (the “Act”). If a material breach is a “substantial factor” in causing damages, the breaching party must answer for all damages that were reasonably contemplated by the parties when they formed the contract. Claimants argue that matters of contract should be governed strictly by the agreement, and risk can be controlled by negotiated terms, including waivers and limitations. Defendants complain that construction projects are collaborative, multi-party affairs, and strict application of contract principles leads to harsh results for relatively minor comparative fault for the same or overlapping damages. The notion of apportioning purely economic loss contract damages based on comparative fault is not new. Since April 2006, Florida has been a “pure” comparative fault jurisdiction with limited exceptions. Prior to the amendment, tort liability for non-economic damages was purely comparative, but liability for economic damages was typically a combination of joint and several liability with an additional exposure based on comparative fault. Read the court decision
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Reprinted courtesy of Steven Hoffman, Cole, Scott & Kissane
Mr. Hoffman may be contacted at Steven.Hoffman@csklegal.com

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