Owners Should Serve Request for Sworn Statement of Account on Lienor
August 10, 2017 —
David Adelstein - Florida Construction Legal UpdatesWhen an owner receives a construction lien, an owner should serve the lienor with a Request for Sworn Statement of Account. The Request for Sworn Statement is authorized by Florida Statute s. 713.16(2) and should be in the following form:
REQUEST FOR SWORN STATEMENT OF ACCOUNT
WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
To: (Lienor’s name and address)
The undersigned hereby demands a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any, the materials furnished, the materials to be furnished, if known, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement for the improvement of real property identified as (property description) .
(name of contractor)
(name of the lienor’s customer, as set forth in the lienor’s Notice to Owner, if such notice has been served)
(signature and address of owner)
(date of request for sworn statement of account)
From both an owner and lienor’s perspective, the bolded, capitalized language is key. It states that if the lienor fails to respond under oath within 30 days, it will LOSE its lien. That is a very punitive measure for a lienor’s failure to respond, meaning a lienor should absolutely respond, no questions asked. Plus, a lienor’s response to a Request for Sworn Statement of Account is not a burdensome ordeal.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Everyone Wins When a Foreclosure Sale Generates Excess Proceeds
August 07, 2018 —
Ben Reeves - Snell & Wilmer Real Estate Litigation BlogIntroduction
When a foreclosure sale generates more money than needed to pay off the lien, the excess proceeds usually go first to creditors in the order of their priority, and second to the owner after creditors are paid in full. So, in truth, not everyone wins when a foreclosure sale brings in too much money. Amusingly, in Steinmetz v. Everyone Wins, the court awarded excess sale proceeds to….you guessed it…Everyone Wins, despite the owner’s argument that Arizona’s anti-deficiency statutes barred it from recovering anything.
In addition to supplying a clever title for this post, Steinmetz v. Everyone Wins provides an important analysis of how Arizona’s anti-deficiency statutes, homeowner’s assessment lien statutes, and foreclosure statutes apply when determining who “wins” when it comes to excess sale proceeds.
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Ben Reeves, Snell & WilmerMr. Reeves may be contacted at
breeves@swlaw.com
Millennials Want Houses, Just Like Everybody Else
September 17, 2014 —
Peter Coy – BloombergThe proportion of homeownership among young adults has fallen from a third to a quarter over the past half-century. But the idea that today’s millennials are allergic to deeds and mortgages is a myth, says a report based on a survey of more than 1,000 Americans aged 18-29 by the Demand Institute, a nonprofit jointly operated by the Conference Board and Nielsen (NLSN).
“Like most myths, there is some truth here—but only some,” says the report’s introduction. The true part is that millennials are financially squeezed because of “graduating into a weak job market with growing student loan debt,” Jeremy Burbank, a Demand Institute vice president, said in a statement. The false part, the report says, is that millennials don’t want to own their homes.
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Peter Coy, BloombergMr. Coy may be contacted at
pcoy3@bloomberg.net
Properly Trigger the Performance Bond
January 04, 2018 —
David Adelstein - Florida Construction Legal UpdatesOriginally Published by CDJ on January 5, 2017
A performance bond is a valuable tool designed to guarantee the performance of the principal of the contract made part of the bond. But, it is only a valuable tool if the obligee (entity the bond is designed to benefit) understands that it needs to properly trigger the performance bond if it is looking to the bond (surety) to remedy and pay for a contractual default. If the performance bond is not properly triggered and a suit is brought upon the bond then the obligee could be the one materially breaching the terms of the bond. This means the obligee has no recourse under the performance bond. This is a huge downside when the obligee wanted the security of the performance bond, and reimbursed the bond principal for the premium of the bond, in order to address and remediate a default under the underlying contract.
A recent example of this downside can be found in the Southern District of Florida’s decision in Arch Ins. Co. v. John Moriarty & Associates of Florida, Inc., 2016 WL 7324144 (S.D.Fla. 2016). Here, a general contractor sued a subcontractor’s performance bond surety for an approximate $1M cost overrun associated with the performance of the subcontractor’s subcontract (the contract made part of the subcontractor’s performance bond). The surety moved for summary judgment arguing that the general contractor failed to property trigger the performance bond and, therefore, materially breached the bond. The trial court granted the summary judgment in favor of the performance bond surety. Why?
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Connecticut Appellate Court Breaks New Ground on Policy Exhaustion
April 26, 2021 —
Eric B. Hermanson & Austin D. Moody - White and WilliamsThe Connecticut Appellate Court recently issued a wide-ranging opinion, Continental Casualty Co. v. Rohr, Inc.,[1] which significantly extended the current restrictive view on when a general liability policy can be considered exhausted so as to trigger overlying excess coverage. The case marks a further step away from Judge Augustus Hand’s almost-century-old ruling in Zeig v. Massachusetts Bonding & Ins. Co.,[2] which held that an underlying policy could be “exhausted” by a below-limits settlement as long as the insured was willing to “fill the gap” between the settlement amount and the limits of the policy.[3]
In recent years, courts in California and elsewhere have increasingly walked back Zeig’s broad ruling – holding in Qualcomm v. Certain Underwriters,[4] for example, that an insured’s below-limits settlement with primary carriers does not exhaust the limits of primary coverage, or allow the insured to access overlying excess coverage.[5]
Reprinted courtesy of
Eric B. Hermanson, White and Williams and
Austin D. Moody, White and Williams
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
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Architects Should Not Make Initial Decisions on Construction Disputes
July 05, 2023 —
Bill Wilson - Construction Law ZoneA common provision often deleted from the standard form AIA documents is the provision in the AIA A201 General Conditions requiring an Initial Decision Maker (IDM) for claims between the contractor and owner. In the A201, the contracting parties have the option of naming their own IDM for the project. If an IDM is not selected (which is typically the case) the architect serves this role by default. While it is in all parties’ best interests to resolve disputes quickly and efficiently, using the architect as the IDM is not the best way to achieve such a resolution.
Several reasons work against using the architect as the IDM. Contractors typically don’t trust architects to be impartial in resolving disputes because the architect is paid by the owner. Most architects don’t have the temperament or any training to facilitate dispute resolution. An architect’s “initial decision” could even drive the parties further apart and lead to further issues later in the project. The architect may also be perceived to be part of the problem that led to the dispute in the first place. Also, many architects simply prefer to avoid serving the thankless role of an IDM altogether. Lastly, inserting the architect into the dispute resolution process as a required IDM adds an additional unnecessary step to dispute resolution, which can delay the overall procedure.
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Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
The Future of Airport Infrastructure in a Post-Pandemic World
March 21, 2022 —
Cait Horner & Adam J. Weaver - Gravel2Gavel Construction & Real Estate Law BlogIn the wake of the COVID-19 pandemic, many service industries are reevaluating their physical footprint, and the aviation industry is no exception. Opportunities abound for developers, designers, and contractors to update and expand airport terminals to accommodate traditional needs while also meeting the growing demand for more open space (including larger outdoor areas in terminals and larger cargo facilities to meet the needs of Amazon, FedEx and UPS).
The Future of Passenger Terminals
In nearly every service industry, safety and hygiene policies are being overhauled, with a specific emphasis on the desire for more space across the board. Even before the pandemic caused a seismic shift in the way individuals interact with each other, airports and airlines had started reducing the number of unnecessary interactions between travelers and employees by introducing self-service check-in kiosks and contactless ordering at restaurants. The automation inside the airport will only continue to advance.
Reprinted courtesy of
Cait Horner, Pillsbury and
Adam J. Weaver, Pillsbury
Ms. Horner may be contacted at cait.horner@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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Newmeyer & Dillion Partner Aaron Lovaas & Casey Quinn Recognized by Super Lawyers
July 21, 2018 —
Newmeyer & DillionLAS VEGAS, Nev. – JUNE 11, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that partner
Aaron Lovaas has been selected to the 2018 Mountain States Super Lawyers list, and associate
Casey Quinn has been selected to the 2018 Mountain States Rising Stars list by Super Lawyers. Each year, no more than 5 percent of lawyers are named to a Super Lawyers list and less than 2.5 percent are named to the Rising Stars list. This is the 9th consecutive year Lovaas has been honored, while Quinn has been consistently selected as a Rising Star honoree in prior years.
Aaron Lovaas is a partner in the Las Vegas office. As a transactional attorney and business litigator, Lovaas has the ability to evaluate legal issues from both points of view and help his clients understand their best option. He also brings to the table experience as a business owner, having owned and managed his own boutique law firm for 12 years.
Casey Quinn, an associate in the Las Vegas office, focuses his practice in complex commercial and construction litigation. He represents a variety of business entities in commercial disputes, including contract claims, business torts, privacy lawsuits, defamation, and fraud. Quinn is a past chair of the Construction Law section of the State Bar of Nevada and has successfully argued before the Supreme Court of Nevada, as well as settled disputes through various forms of conflict resolution including mediation and arbitration.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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