Commencing of the Statute of Repose for Construction Defects
November 08, 2021 —
David Adelstein - Florida Construction Legal UpdatesFlorida has a ten-year statute of repose which applies predominantly to construction defect claims. This can be found in Florida Statute s. 95.11(3)(c). After ten years, any rights relative to a construction defect claim are time-barred. However, the statute of repose date has been watered down and can be made to be more of a factual question due to the lack of objectivity as to the date that starts the ten-year repose clock. The watering down of the statute of repose date benefits parties asserting construction defect claims provided they strategically appreciate the question of fact that can be created when up against the statute of repose. Stated differently, when up against the clock to assert a construction defect claim, strategically develop those facts, evidence, and arguments to maximize creating a question of fact as to when the statute of repose clock commenced. Conversely, as a defendant sued for construction defects, you want to maximize the facts, evidence, and arguments to fully establish the date the statute of repose clock had to commence for purposes of a statute of repose defense.
The recent opinion in Spring Isle Community Association, Inc. v. Herme Enterprises, Inc., 46 Fla. L. Weekly D2306b (Fla. 5th DCA 2021) demonstrates the factual question associated with the clock that starts the statute of repose date. This factual question is created by Florida Statute s. 95.11(3)(c) that provides:
[T]he action [founded on the design, planning, or construction of an improvement to real property] must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
Spring Isle Community Association, supra. (Note, see also current s. 95.11(3)(c) version in effect per hyperlink above.)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
The “Builder’s Remedy” Looms Over Bay Area Cities
February 20, 2023 —
Allan C. Van Vliet, Cara M. MacDonald, Robert G. Howard & Robert C. Herr - Gravel2Gavel Construction & Real Estate Law BlogCities in the San Francisco Bay Area are frantically working to finalize their state-mandated “housing elements” in their General Plans by the January 31, 2023, deadline imposed by the California Department of Housing and Community Development (HCD). For Bay Area cities like San Francisco, Oakland, San Jose and Berkeley, the plans must be approved by HCD
on or before January 31, 2023. California municipalities have extra incentive to get their housing elements approved this year, because the failure to meet the deadline may subject them to a remedy known as
the “builder’s remedy.”
The failure of cities in California to adopt and implement adequate housing elements as part of their General Plans has contributed to the state’s serious housing affordability crisis. The “builder’s remedy” incentivizes cities to meet housing element deadlines, because failure to do so could cause cities to lose control over certain land use entitlement decisions for projects that include housing under the state’s Housing Accountability Act (HAA).
Reprinted courtesy of
Allan C. Van Vliet, Pillsbury,
Cara M. MacDonald, Pillsbury,
Robert G. Howard, Pillsbury and
Robert C. Herr, Pillsbury
Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com
Ms. MacDonald may be contacted at cara.macdonald@pillsburylaw.com
Mr. Howard may be contacted at robert.howard@pillsburylaw.com
Mr. Herr may be contacted at robert.herr@pillsburylaw.com
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Statute of Limitations Upheld in Construction Defect Case
September 30, 2011 —
CDJ STAFFThe Missouri Court of Appeals has ruled in Ball v. Friese Construction Co., finding that Mr. Ball’s claims were barred by the statute of limitations.
Mr. Ball hired Friese Construction Company to build a single-family home. The sale was completed on March 29, 2001. That December, Mr. Ball complained of cracks in the basement floor. SCI Engineering, n engineering firm, hired by Friese, determined that the home’s footing had settled and recommended that Mr. Ball hire a structural engineer to determine if the footings were properly designed and sized. In September 2002, the structural engineer, Strain Engineering, determined that the cracks were due to slab movement, caused in part by water beneath the slab, recommending measures to move water away from the foundation. In 2005, Mr. Ball sent Friese correspondence “detailing issues he was having with the home, including problems with the basement slab, chimney structure, drywall tape, and doors.” All of these were attributed to the foundation problems. In 2006, Friese stated that the slab movement was due to Ball’s failure to maintain the storm water drains.
In 2009, Ball received a report from GeoTest “stating the house was resting on highly plastic clay soils.” He sued Friese in May, 2010. Friese was granted a summary judgment dismissing the suit, as the Missouri has a five-year statute of limitations. Ball appealed on the grounds that the extent of the damage could not be determined until after the third expert report. The appeals court rejected this claim, noting that a reasonable person would have concluded that after the conclusion of SCI and Strain Engineering that “injury and substantial damages may have occurred.”
The court concluded that as there were not “continuing wrongs causing new and distinct damages,” he should have filed his lawsuit after the first two expert reports, not waiting seven years for a third expert to opine.
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Enforcement Of Contractual Terms (E.G., Flow-Down, Field Verification, Shop Drawing Approval, And No-Damage-For-Delay Provisions)
May 04, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhat you contractually agree to matters, particularly when you are deemed a sophisticated entity. This means you can figuratively live or die by the terms and conditions agreed to. Don’t take it from me, but it take it from the Fourth Circuit’s decision in U.S. f/u/b/o Modern Mosaic, Ltd. v. Turner Construction Co., 2019 WL 7174550 (4th Cir. 2019), where the Court started off by stressing, “One of our country’s bedrock principles is the freedom of individuals and entities to enter into contracts and rely that their terms will be enforced.” Id. at *1.
This case involved a dispute between a prime contractor and its precast concrete subcontractor on a federal project. The subcontractor filed a Miller Act payment bond lawsuit. The trial court ruled against the subcontractor based on…the subcontract’s terms! So, yes, what you contractually agree to matters.
Example #1 – The subcontractor fabricated and installed precast concrete panels per engineering drawings. However, the parking garage was not built per dimensions meaning the panels it fabricated would not fit. The subcontractor had to perform remedial work on the panels to get them to fit. The subcontractor pursued the prime contractor for these costs arguing the prime contractor should have field verified the dimensions. The problem for the subcontractor, however, was that the subcontract required the subcontractor, not the prime contractor, to field verify the dimensions. Based on this language that required the subcontractor to field verify existing conditions and take field measurements, the subcontractor was not entitled to its remedial costs (and they were close to $1 Million). Furthermore, and of importance, the Court noted that the subcontract contained a flow down provision requiring the subcontractor to be bound by all of the terms and conditions of the prime contract and assume those duties and obligations that the prime contractor was to assume towards the owner. While this flow-down provision may often be overlooked, here it was not, as it meant the subcontractor was assuming the field verification duties that the prime contractor was responsible to perform for the owner.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Wait, You Want An HOA?! Restricting Implied Common-Interest Communities
September 17, 2018 —
Neil McConomy - Snell & Wilmer Real Estate Litigation BlogWhile the butt of many jokes and a thorn in the side of some property owners, homeowners associations (“HOAs”) serve the vital function of collecting and disbursing funds to care for and maintain common areas of residential developments. Without HOAs, neighborhood open spaces, parks, and other amenities risk falling into disrepair through a type of tragedy of the commons, wherein residents use such amenities but refuse to subsidize care and maintenance for these common areas believing someone else will pony-up the funds. HOAs, when properly organized and managed, avoid this problem by ensuring everyone pays their fair shares for the common areas. Colorado’s Common Interest Ownership Act (“CCIOA”), C.R.S. § 38-33.3-101 et seq., sets forth the manner in which such common-interest communities, and their related associations, must be established.
Earlier this summer, the Colorado Supreme Court issued an opinion limiting the application of previous case law that allowed for the establishment of common-interest communities (and their related HOAs) by implication. See McMullin v. Hauer, 420 P.3d 271 (Colo. 2018). Prior to McMullin, Colorado courts had been increasing the number of factual scenarios implying the creation of common-interest communities under CCIOA. See e.g., Evergreen Highlands Assoc. v. West, 73 P.3d 1 (Colo. 2003) (finding an implied obligation of landowners to fund a pre-existing HOA’s obligations); DeJean v. Grosz, 412 P.3d 733 (Colo. App. 2015) (finding an implied right of a homeowner to found an HOA after the developer filed a declaration expressing an intent to form one but ultimately failed to do so); and Hiwan Homeowners Assoc. v. Knotts, 215 P.3d 1271 (Colo. App. 2009) (finding the existence of an HOA despite no common property existing within the development). The McMullin opinion highlights the importance of strict compliance with CCIOA to preserve common areas in a development, ensure the ability to fund maintenance of such areas, and avoid future litigation.
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Neil McConomy, Snell & WilmerMr. McConomy may be contacted at
nmcconomy@swlaw.com
The Simple Reason Millennials Aren't Moving Out Of Their Parents' Homes: They're Crushed By Debt
February 26, 2015 —
Nina Glinski – BloombergMillennials are not budging from their parents' basements, even though the job market is on the mend. One really big reason? Student loans.
Last year, the rate of 25- to 34-year-olds living at home rose to 17.7 percent among men and 11.7 percent for women, Census data showed last week. That is a record high for both genders.
Rising co-residence rates are correlated more closely with student debt than with factors like economic conditions and the housing market, according to a staff report in November from the Federal Reserve Bank of New York. The regional bank wrote about the trend today in its blog called "Liberty Street Economics."
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Nina Glinski, Bloomberg
Illinois Supreme Court Finds Construction Defect Claim Triggers Initial Grant of Coverage
February 26, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe Illinois Supreme Court found that the underlying allegations addressing construction defects were sufficient to establish "property damage" caused by an "occurrence."Acuity v. M/I Homes of Chicago, LLC, 2023 Ill. LEXIS 1019 (Ill. Nov. 30, 2023).
M/I Homes was the general contractor for a residential townhome development. The Owners' Association sued for breach of conract and breach of the implied warranty of habitability against M/I Homes. The complaint alleged that M/I Homes' subcontractors caused construction defects by using defective materials, conducting faulty workmanship and failing to comply with applicable building codes. The defects included leakage and uncontrolled water with moisture in locations in the buildings where it was not intended or expected. The Association further alleged that M/I Homes did not intend to cause the construction defects nor did it expect or intend the resulting property damage, such as damage to other building materials. The complaint further alleged that M/I Homes did not perform any of the construction work and that the subconractors performed all the work on its behalf.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Mexico’s Construction Industry Posts First Expansion Since 2012
August 13, 2014 —
Brendan Case – BloombergMexico’s construction industry expanded in June for the first time in 19 months, adding to signs that the economy is rebounding after missing analyst estimates in seven of the last eight quarters.
Construction increased 2.2 percent from the year earlier, helping industrial production to expand 2 percent, according to data released today by the national statistics agency. The median estimate of 19 economists surveyed by Bloomberg was for industrial output to rise 2.1 percent.
“Industrial activity continued strengthening in June, very much in line with what the market expected,” Mario Correa, the chief Mexico economist at Bank of Nova Scotia, said in a note to clients today. “The construction industry finally showed a positive growth rate.”
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Brendan Case, BloombergMr. Case may be contacted at
bcase4@bloomberg.net
