The EPA’s Renovation, Repair, and Painting Rule: Are Contractors Aware of It?
March 12, 2015 —
Beverley BevenFlorez-CDJ STAFFRemodeling Magazine reported recently that some remodelers are unaware of the U.S. Environmental Protection Agency’s (EPA) Renovation, Repair and Painting (RRP) rule despite that it took effect back in April of 2010.
“There are still quite a few remodelers who have never heard of RRP,” Mark Schlager, president of Access Training Services, an EPA and Occupational Safety and Health Administration (OSHA) trainer in Pennsauken, N.J. told Remodeling Magazine.
According to the article, “The RRP rule applies to homes, apartments, and child-occupied commercial facilities built before 1978.” There are two RRP certifications required on every job: “a “Firm” certification for the company that contracts to do the work, and a “Renovator” certification for the person overseeing the work. A solo operator needs both certifications, which are good for five years.”
Read the court decisionRead the full story...Reprinted courtesy of
Unlicensed Contractors Nabbed in Sting Operation
September 09, 2011 —
CDJ STAFFThe California State License Board charged sixteen people in the Fresno area with accepting contracting jobs without licenses. The Statewide Investigative Fraud Team of the CSLB set up a sting operation at a home in Clovis, California seeking bids on tree service, painting, and general contracting services. Those who bid for jobs at more than $500 are required under California law to be licensed. Unlicensed contractors can only work on jobs with a cost to the homeowner of less than $500 and must inform the homeowner that they are not licensed.
In addition to citing contractors for not possessing appropriate licenses, the CSLB also cited contractors for failure to carry workers compensation insurance and illegal advertising. Further, California law limits down payments to the lesser of ten percent or $1,000. Two contractors were cited for requesting excessive down payments.
One contractor, an unlicensed tree service contractor, had been cited previously in a sting operation. He failed to show up for his court date.
Read the full story…
Read the court decisionRead the full story...Reprinted courtesy of
Construction on the Rise in Washington Town
June 16, 2011 —
CDJ STAFFThe Kitsap Sun reports that Gig Harbor, a town in the area near Tacoma, Washington, has had a 60% increase in building permit applications as compared to 2010. May, 2011 had as many permits issued for single-family residences in Gig Harbor as were issued for all of 2010. Additionally, a Safeway shopping center on Point Fosdick is described by Dick Bower, Gig Harbor Building and Fire Safety Director, as “a huge project and it’s going to bring in quite a bit of revenue.” He called the increase in building “economic recovery at the grassroots level.”
Bower said that the building officials in other towns have also seen upswings in construction. He anticipates more activity in the future.
Read the full story…
Read the court decisionRead the full story...Reprinted courtesy of
Hawaii Court of Appeals Remands Bad Faith Claim Against Title Insurer
January 14, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe Hawaii Intermediate Court of Appeals (ICA) vacated the trial court's issuance of summary judgment to the title insurer on a bad faith claim and remanded the case. Anastasi v. Fidelity Nat. Title Ins. Co., 2014 Haw. App. LEXIS 585 (Haw. Ct. App. Dec. 30, 2014).
Fidelity issued a title insurance policy to Anastasi insuring that Alajos Nagy had good title to the property. The policy insured Anastasi against loss in the event a mortgage on the property executed by Nagy was not enforceable. Anastasi had loaned $2.4 million to Nagy and Nagy had executed the mortgage in favor of Anastasi as security for the loan.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Worker Falls to His Death at Kyle Field
January 15, 2014 —
Melissa Zaya-CDJ STAFFThe family of Angel Garcia, a construction worker who fell to his death while working on Texas A&M’s football stadium (Kyle Field), has filed a $100 million lawsuit against six construction companies claiming inadequate safety policies, procedures, and negligence, Jordan Overturf of The Eagle reported.
According to The Eagle, Garcia’s attorneys alleged, “[Garcia] was ‘catapulted off the edge of a fourth-floor ramp’ on the northeast side when a section of concrete fell onto the bucket of the skid steer-loader he was operating. The tractor hit a steel beam during the fall, which exerted enough force to eject Garcia from the tractor.” Garcia did not survive his injuries. The complaint claims the companies involved violated the Occupational Safety and Health Administration rules and regulations. The defendants in the suit were unavailable for comment, according to The Eagle.
Read the court decisionRead the full story...Reprinted courtesy of
Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?
March 05, 2015 —
William L. Porter – Porter Law Group, Inc.The “Notice of Non-Responsibility” is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is “No”, the posting and recording of a Notice of Completion will not prevent enforcement of a California Mechanics Lien.
The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property.
The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner “that did not contract for the work of improvement”, within 10 days after the owner first “has knowledge of the work of improvement”, may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property.
What commonly occurs however is that early in the process the owner authorizes or even requires its tenant to perform beneficial tenant improvements on the property. This authorization is often set forth in a tenant lease or other written document. The dispositive factor for determining whether the Notice of Non-Responsibility will be enforceable though is that the owner knows that these improvements will be made to the property and intends that they be made, usually long before the work begins. Indeed, the owner has usually negotiated these very terms into the lease contract. The owner then mistakenly believes that once work on the property commences it has 10 days to post and record a Notice of Non-Responsibility and thereby protect itself from a mechanics lien.
The usual error is two-fold. First, the statute states that the Notice is available when the owner “did not contract for the work of improvement”. The fact though is that the owner did contract for the work of improvement. It did so through the lease contract. This is true even though the owner’s contract was not with the contractor or supplier directly. Secondly, the 10 day period to post and record the Notice begins when the owner first “has knowledge” of the work of improvement. This knowledge was of course gained when the lease was negotiated and signed, providing knowledge typically many days before the work has begun. Thus, the 10 day period can also seldom be met. The Notice of Non-Responsibility will therefore fail both rules because the owner has in fact contracted for the improvement and because he does not act within 10 days of gaining this knowledge.
The next event in the typical scenario occurs when the tenant does not pay its contractor. The contractor then has nothing to pay its subcontractors. Material suppliers also go unpaid. Mechanics liens are then recorded by the unpaid claimants, followed by foreclosure actions within ninety days thereafter. Owners will typically point to the Notice of Non-Responsibility they posted and recorded, claiming its protection. Claimants then in turn point to the lease or other evidence that the owner knew of the pending improvements and contracted in some way that the improvements be performed, often also more than 10 days before they posted the Notice. Judges generally agree with the unpaid mechanics lien claimants and the Notice of Non-Responsibility is deemed ineffective.
The fact that the Court does not enforce the Notice of Non-Responsibility under these circumstances is not an unfair result. Since the owner authorized the work to be performed and it received a substantial benefit in the form of those improvements, it is not unfair that the owner should pay for those benefits. It would be inequitable for the owner to obtain the benefit of the improvements which it authorized but for which it did not pay, while allowing those who provided the benefit to go unpaid. Moreover, without such a system in place the door would be open to owners setting up sham “tenants” who would enter into contracts to have work performed, only to disappear when the work is completed, leaving the contractor without a source of payment. The system in place as described above prevents such duplicity. Owners would do well to arm themselves with proper knowledge of when the Notice of Non-Responsibility will and will not protect them and then responsibly use the Notice of Non-Responsibility.
For the legal eagles among you, the following cases illustrate the view of the courts, consistent with the above: Baker v. Hubbard (1980) 101 Cal.App.3d 226; Ott Hardware v. Yost (1945) 69 Cal. App.2d 593 (lease terms); Los Banos Gravel Co. v. Freeman (1976) 58 Cal.App.3d 785 (common interest); Howard S. Wright Construction Co. v. Superior Court (2003); 106 Cal.App.4th 314 (participating owner).
William L. Porter of
Porter Law Group, Inc. located in Sacramento, California may be contacted at (916) 381-7868 or bporter@porterlaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Alexander Moore Promoted to Managing Partner of Kahana Feld’s Oakland Office
May 08, 2023 —
Alexander R. Moore - Kahana FeldKahana Feld is pleased to announce that Alexander R. Moore, Esq., has been promoted to Managing Partner of our Oakland office. Mr. Moore has been at Kahana Feld since 2021 and is a member of the construction defect and general liability practice groups.
Mr. Moore has over 23 years of experience representing individual and commercial clients in complex disputes arising out of construction contracts, construction defect allegations, premises liability matters, landlord-tenant disputes, and contractual disputes arising out of various business relationships involving financial services companies, technology companies, telecommunications companies, real estate brokerages, non-profits, and a range of small businesses. When not focused on litigation, Mr. Moore enjoys consulting on transactional matters including the development of construction and business contracts. He has extensive experience evaluating rights and obligations under construction contracts and related insurance programs. He also assists clients in the implementation of pre-litigation risk management strategies.
Read the court decisionRead the full story...Reprinted courtesy of
Alexander R. Moore, Kahana FeldMr. Moore may be contacted at
amoore@kahanafeld.com
What The U.S. Can Learn from China to Bring Its Buildings to New Heights
November 15, 2022 —
Marc Gravely - Gravely PC“China’s history is marked by thousands of years of world-changing innovations: from the compass and gunpowder to acupuncture and the printing press. No one should be surprised that China has re-emerged as an economic superpower.” —Gary Locke
Westerners have often criticized China’s ‘creative’ interpretation of the concept of intellectual property, but even its harshest critics recognize the Asian superpower’s ability to build large-scale infrastructure projects at a breakneck pace. America does not want to emulate the absolute government control that has allowed China to build futuristic bridges and airports in record time. However, there are still some things we can learn from our biggest global competitor.
The White House itself has invoked China’s grand achievements in its quest to secure more infrastructure funding from Congress. The administration believes that the only way to compete with China is to spend
at least $2 trillion on upgrading bridges and mass transit, modernizing neighborhoods and airports, and making broadband access universal.
The skylines of China’s largest metropolises are nothing short of mesmerizing. Its grand airports and auditoriums amaze tourists and locals alike. Explore any important Chinese city on Google maps, and you will find a level of modernization in infrastructure that far surpasses American cities of similar size. Scholars have coined the phrase
“China envy” to refer to the effects of this phenomenon.
According to urban planning historian Thomas J. Campanella, China is doing the kind of things America used to do: amazing the world with grand structures that push engineering and architecture forward. The question is, if China has emulated us, can we now emulate China?
China Envy
There are some basic differences between the two nations which make emulation difficult. On the one hand, China has leapfrogged from rudimentary infrastructure to suborbital spaceships and bullet trains. America is at a different stage and moves at a different pace. Chinese leaders don’t need approval from the opposition in Congress; they have total control. If the Chinese administration wants to build a bridge, they just go ahead and do it. Democracy is a bit more complicated, but we naturally welcome the complexities, considering how stifling the political atmosphere is under communist rule.
Another difference some analysts have pointed out is that the current Chinese President and his predecessor both studied engineering, so they were naturally keen on innovation in their field. Meanwhile, U.S. presidents have seldom had such backgrounds. The American public has more often elected lawyers to rule over our nation.
China envy is understandable. Our competitor is home to
49 of the planet’s 100 tallest skyscrapers. It also boasts a million bridges. While the U.S. spends 2.4 percent of GDP on infrastructure,
China spends 8 percent. This was an important selling point for the White House’s ambitious infrastructure plan.
Located in a mountainous region with over 1,500 rivers, China has built bridges of fantastic proportions to keep urban centers and important agricultural areas connected.
The Pingtang Bridge in Guizhou province links two sides of a canyon that are 7,000 feet apart. The spectacular, 7-mile-long Hutong Yangtze River Bridge efficiently provides railway and highway access to Shanghai from Jiangsu province.
As climate change forces us to reevaluate Americans’ preference for private cars and the neglect of our railway systems, the inferior car ownership that was once a disadvantage for China is now an advantage. By 2025, high-speed trains will service
98 percent of Chinese cities. Subways are common in many of them. Today, the country boasts a high-speed rail network totaling more than 23,500 miles, or
eight times the distance between New York and LA. Chinese workers travel on bullet trains at 215 miles per hour, much faster than their American counterparts.
The gap between China and the U.S. when it comes to infrastructure is one of astronomic proportions. A few years ago, Bill Gates announced that China had used as much cement in three years as the U.S. in 100 years. China currently produces 14 times more steel than the U.S. and about 2.2 gigatons of cement per year, roughly half of the
4.5 gigatons our country used in the 20th century. In China, city planners have not focused on short-term return on investment, but on broader societal benefits. For example, World Bank officials were not enamored with the idea of creating a subway in Shanghai; the region’s geology made the project far too complex. The World Bank suggested buses would be a better solution for the city’s transit, but Chinese officials
didn’t listen and went ahead. Thirty years later, the Shanghai subway has become an example of efficiency, transporting more than 10 million people every day. It is as if China followed a different logic, one that often pays off.
According to Mr. Campanella, “We need a bit of China to be stirred into our game. . . We’re over privileging the immediately affected residents. What we don’t do is give requisite weight to the larger society.” China’s modernization has, however, not been without cost. Accelerated construction creates pollution, and not all the country’s massive structures are green or energy efficient. President Xi’s country is conscious about pollution, and it has poured significant resources into green infrastructure projects like wind and solar farms.
There is a boldness in China’s infrastructure planning, a pioneering spirit that we would do well to imitate. What American jurisdiction would spend billions on a new state-of-the-art airport only 50 miles away from a recently modernized one? China has done it in Beijing. In a way, it seems that China is seeing beyond the here and now, planning for tomorrow, and this is something we can learn from our competitors.
Marc Gravely is the founder and lead attorney at Gravely PC and author of Reframing America’s Infrastructure: A Ruins to Renaissance Playbook.
Read the court decisionRead the full story...Reprinted courtesy of
