Fairfield Connecticut Building Expert Directory

Filing Lien Foreclosure Lawsuit After Serving Contractor’s Final Payment Affidavit

June 06, 2022 — David Adelstein - Florida Construction Legal Updates
If you are an unpaid contractor in direct contract with the owner of real property, you should be serving a Contractor’s Final Payment Affidavit prior to foreclosing on your construction lien. This should extend to any trade contractor hired directly by the owner. As a matter of course, I recommend any lienor hired directly by the owner that wants to foreclose its lien to serve a Contractor’s Final Payment Affidavit. For example, if you are a plumbing contractor hired by the owner and want to foreclose your lien, serve the Affidavit. If you are a swimming pool contractor hired by the owner and want to foreclose your lien, serve the Affidavit. You get the point. (If you are not in direct contract with the owner, you do not need to serve the Affidavit, but you need to make sure you timely served your Notice to Owner; when you are in direct contract with the owner, you do not need to serve the Notice to Owner because the owner already knows you exist.) The Contractor’s Final Payment Affidavit is a statutory form. I suggest working with counsel to help execute to avoid any doubts with the information to include. The unpaid amount listed should correspond with the amount in your lien and you want to identify all unpaid lienors (your subcontractors and suppliers) and amounts you believe they are owed. 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

Summarizing Changes to NEPA in the Fiscal Responsibility Act (P.L. 118-5)

September 05, 2023 — Anthony B. Cavender & Marcus Manca - Gravel2Gavel Construction & Real Estate Law Blog
The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970, and it has rarely been amended or revised since then. NEPA is basically a procedural statute which requires Federal permitting authorities, before a major federal project is approved, to carefully consider the significant environmental consequences of the proposed federal action. NEPA has been employed to conduct a probing review of wide variety of federal projects and actions, and the President’s Council on Environmental Quality (CEQ) has promulgated a comprehensive set of rules and guidance documents that must be followed or consulted. (See 40 CFR Section 1500 et seq.) The first set of NEPA rules was issued in 1978, and very little was done to bring the rules up to date until 2020. The first phase of this review has been completed, and a second and final phase will soon be underway. The NEPA review process includes the use of “categorical exclusions,” environmental assessments and environmental impact statements to measure the environmental impact of a proposed project. Over time, the rules and their implementation and judicial interpretation have become ever more complex, and an enormous body of NEPA case law has resulted. The recent Congressional debt limit deliberations provided an opportunity to revise some of these procedures, and the Fiscal Responsibility Act, signed into law on June 3, 2023, included at Title III, a section devoted to “Permitting Reform.” Reprinted courtesy of Anthony B. Cavender, Pillsbury and Marcus Manca, Pillsbury Read the court decision
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Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Transition Study a Condo Board’s First Defense against Construction Defects

December 04, 2013 — CDJ STAFF
According to the advice provided by T. Allen Mott and Nicholas D. Cowie, condominium boards would be well advised to “hire an engineer or architect to perform a transition study,” since it would be preferable to repair any problems while warranties are still in effect. They also caution that the board must “determine whether the developer-created budget and reserve fund are adequate to cover the cost of maintaining the condominium’s construction over time.” They note that discovered in time, some problems are easy to fix, but left unrepaired, they can result in “extensive, hidden property damage requiring associations to borrow money and assess unit owners to cover the entire cost of repairing the developer’s construction defects and resulting property damage. The goal, as they point out, is “an amicable repair resolution.” Read the court decision
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Is New York Heading for a Construction Defect Boom?

March 12, 2015 — Beverley BevenFlorez-CDJ STAFF
The New York Times reported that “[t]here is growing concern that some developers are repeating the mistakes of the last housing boom and delivering substandard product.” “My phone is ringing already on projects that were just completed,” Steven D. Sladkus, a Manhattan real estate lawyer who says his firm has dozens of active construction defect cases, told the New York Times. “Uh-oh, here we go again.” Recent data shows a rising trend of building plans in New York: “Last year, the city issued construction permits for 20,300 units of housing, according to the Real Estate Board of New York. And the state attorney general’s office received submissions for 263 offering plans for condo conversions and new construction in 2014, up from 184 in 2011. Those numbers will most likely grow in 2015, encouraged by Mayor Bill de Blasio’s push to build more housing.” Read the court decision
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Application of Efficient Proximate Cause Doctrine Supports Coverage

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

Relying on the efficient proximate cause doctrine, the court determined coverage potentially existed for damage caused by water. Union Sav. Bank v. Allstate Indem. Co., 2011 U.S. Dist. LEXIS 134398 (S.D. Ind. Nov. 21, 2011).

The Tods purchased property that was mortgaged by Union Savings. The Tods obtained a Landlords Policy for the property from Allstate. When the Tods were in default on their loan, Union Savings notified them that foreclosure proceedings would commence. Union Savings sent an appraiser to the property who discovered water in the basement. Water and electricity to the building were off. Union Savings notified Allstate and later filed a formal claim under the mortgagee clause in the Landlords Policy. This clause stated, "A covered loss will be payable to the mortgagees named on the policy declaration. . . ."

Allstate denied coverage, citing exclusions for water damage.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Arbitration Provisions Are Challenging To Circumvent

May 13, 2019 — David Adelstein - Florida Construction Legal Updates
Arbitration provisions are enforceable and they are becoming more challenging to circumvent, especially if one of the parties to the arbitration agreement wants to arbitrate a dispute versus litigate a dispute. Remember this when agreeing to an arbitration provision as the forum for dispute resolution in your contract. There is not a one-size-fits-all model when it comes to arbitration provisions and how they are drafted. But, there is a very strong public policy in favor of honoring a contractual arbitration provision because this is what the parties agreed to as the forum to resolve their disputes. By way of example, in Austin Commercial, L.P. v. L.M.C.C. Specialty Contractors, Inc., 44 Fla.L.Weekly D925a (Fla. 2d DCA 2019), a subcontractor and prime contactor entered into a consultant agreement that contained the following arbitration provision:

Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract between [Prime Contractor] and the [Owner]. Should the Prime Contract contain no specific requirement for the resolution of disputes or should the [Owner] not be involved in the dispute, any such controversy or claim shall be resolved by arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then prevailing, and judgment upon the award by the Arbitrator(s) shall be entered in any Court having jurisdiction thereof.

The prime contract between the owner and prime contractor did not require arbitration. 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

New Braves Stadium Is Three Months Ahead of Schedule, Team Says

September 03, 2015 — Michael Buteau – Bloomberg
Construction of the new $1.1 billion home of Major League Baseball’s Atlanta Braves is about three months ahead of schedule, according to team executives. “We’ve built a really solid, aggressive, efficient plan,” Mike Plant, head of the team’s business operations, said in an interview Thursday during a brick-laying ceremony. “No one has ever built a ballpark of this scale and scope in 39 months, and we’re going to do it in 36.” The 41,500-seat stadium, 14 miles northwest of Turner Field and known as SunTrust Park, will be about 20 percent smaller than the existing ballpark and could be completed by mid-November 2016, Plant and Braves Chairman Terry McGuirk said. The complex will include a 250-room Omni hotel, a nine-story corporate office for Comcast Corp. and the Roxy Theatre, a 4,000-seat music venue. Read the court decision
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Reprinted courtesy of Michael Buteau, Bloomberg

In Oregon Construction Defect Claims, “Contract Is (Still) King”

April 25, 2012 — CDJ STAFF

Writing in Oregon’s Daily Journal of Commerce, David Anderson looks at the aftermath of the case Abraham v. T. Henry Construction, Inc. In that case, Anderson notes that “the homeowners hired a contractor to build their house, and subsequently discovered extensive water damage” “after expiration of the time to sue for breach of contract.” The homeowners claimed negligence. Oregon’s Supreme Court concluded that “homeowners only had to prove that the contractor negligently caused reasonably foreseeable harm to the homeowner’s property.”

Anderson views this decision as leading to two risks for contractors. “First, contractors can be held liable in tort for breaching building code standards; second, they can be held liable for violating the often-difficult-to-define ‘reasonable care’ standard.” But here, “contract can be king.” The Oregon Supreme Court noted that the contractor “could have avoided exposure to the general ‘reasonable care’ standard by more carefully defining its obligations in the original construction contract.”

He notes that contractors who fail to define their obligations or use generic definitions “may be exposing themselves to a more vague scope of liability.”