Housing Inventory Might be Distorted by Pocket Listings
July 23, 2014 —
Beverley BevenFlorez-CDJ STAFFNBC News reported that pocket listings, or unadvertised listings, may be hiding the true number of homes on the market. “A so-called pocket listing is when the real estate agent signs a listing agreement with a seller but does not advertise it widely or put it in a multiple listing service, where other agents and buyers can see it,” according to NBC News.
Lawrence Yun, chief economist for the Realtors, told NBC News that he believes the perceived shortage of inventory “is due to the prevalence of pocket listings in some markets."
Pocket listings aren’t illegal. There aren’t any “hard numbers” for these unadvertised listings, and so the number of actual listings is based on conjecture by realtors.
"The conditions are ripe for this kind of approach to take," Nela Richardson, chief economist at Redfin, a real estate brokerage, told NBC News. “When there is limited inventory, an agent is able to convince a seller, because there is so much demand for housing that maybe as many eyeballs don’t need to see your home as in a traditional market.”
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Life After McMillin: Do Negligence and Strict Liability Causes of Action for Construction Defects Still Exist?
January 24, 2018 —
Thomas Balestreri and Amanda Crawley - Balestreri, Potocki, & HolmesThe ruling is in but the battle will likely continue over the practical application of SB 800. On January 18, 2018 the California Supreme Court issued its decision in
McMillin Albany, LLC v. Superior Court (Van Tassel) (January 18, 2018, S229762) __ Cal.4th __, holding that the statutory prelitigation scheme in The Right to Repair Act (“the Act”) that provides for notice and an opportunity for the Builder to repair defects applies to all claims for construction defects in residential construction sold on or after January 1, 2003, regardless whether the claim is founded on a violation of the Act’s performance standards or a common law claim for negligence or strict liability. (
McMillin Albany, LLC v. Superior Court (Van Tassel) (January 18, 2018, S229762) __ Cal.4th __.) With this holding, has the Court ruled that common law causes of action for construction defect still survive? If so, what will they look like and what standards will be applied?
The short answer is that it appears that common law causes of action still survive, at least for now, but it is not clear from this decision what they will look like and what standards will apply.
Portions of the decision seem to suggest that the Act is the sole and exclusive remedy for construction defect claims: “…even in some areas where the common law had supplied a remedy for construction defects resulting in property damage but not personal injury, the text and legislative history [of the statute] reflect a
clear and unequivocal intent to supplant common law negligence and strict product liability actions under the Act.” (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 6].) (Italics added for emphasis) However, at the end of the decision, the Court seems to be saying that there may still be a place for common law claims for negligence and strict liability alongside the Act but that these causes of action may be subject to the performance standards in the Act.
The
McMillin case went up to the Supreme Court on a procedural issue: whether a common law action alleging construction defects resulting in both economic loss and property damage is subject to the Act’s prelitigation notice and cure procedures. The Van Tassels had dismissed their claims under the Act opting to proceed solely on their common law claims including negligence and strict liability. McMillin sought a stay to force the Van Tassels to comply with the Act’s prelitigation procedures. The Supreme Court held that the Van Tassels must comply with the statutory procedures and affirmed the stay issued by the trial court. But the question remained: now that the Van Tassels were left only with common law claims, how would they proceed under the Act?
To understand how the Court dealt with this question, one must first understand how the Court dealt with the narrow procedural question presented by the case. The Court provides a very detailed, clear explanation of the reasons why it felt the Legislature intended for all construction defect claims involving residential construction must comply with the prelitigation requirements of the Act. In summing up its conclusions the Court makes three definitive holdings.
First, for claims involving economic loss only—the kind of claims involved in
Aas—the Court holds that the Legislature intended to supersede
Aas and provide a statutory basis for recovery. (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 10].) In other words, the Court clearly agrees that the Act was meant to allow recovery of damages based solely on economic damages. No surprise there. Second, the Court held for personal injuries, the Legislature made no changes to existing law that provides common law remedies for the injured party. (Id.) Nobody has ever contested that. Finally, the Court held that for construction defect claims involving property damage and not just economic loss “the Legislature replaced the common law
methods of recovery with the new statutory scheme.” (
Id.,) (Italics added for emphasis.)
In other words, the Court is not saying that negligence and strict liability are not permitted causes of action. The Court is merely stating that these causes of action must comply with the Act’s statutory scheme just as the same as a claim for economic loss. Here the Court is focusing on the procedure that must be followed. “The Act, in effect, provides that construction defect claims not involving personal injury will be treated the same procedurally going forward whether or not the underlying claims gave rise to any property damage.” (
Id.)
Having laid out its fundamental premise, the Court then deals with Plaintiff’s arguments regarding the intent of the Legislature and makes light work of them all. In the process, the Court disapproves
Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal. App. 4th 98, and
Burch v. Superior Court (2014) 223 Cal. App. 4th 1411, to the extent they are inconsistent with the views expressed in the
McMillin opinion.
This is where the decision gets interesting. The Court reminds us that the Van Tassels had dismissed their statutory causes of action for violation of the performance standards under Section 896. One would think at that point that Plaintiffs had to be wondering if they had any claims left given that the Court had ruled that the Act was the sole means of recovery for construction defects. Not so fast. The Court points out that the complaint still rests on allegations of defective construction and that the suit remains an “ ‘action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction’ of the plaintiffs’ homes (§896)
and McMillin’s liability under the Van Tassels’ negligence and strict liability claims depends on the extent to which it [McMillin] violated the standards of sections 896 and 897.” (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 19].) (Emphasis added.) WHAT DID THE COURT JUST SAY? Did the Court just say that a plaintiff could bring a common law cause of action for negligence or strict liability based on a violation of the performance standards under Section 896? What exactly would that claim look like? What would be the elements of such a cause of action?
To answer these questions, the Court states in the very next paragraph, which also happens to be the last paragraph in the decision: “In holding that claims seeking recovery for construction defect damages are subject to the Act’s prelitigation procedures regardless of how they are pleaded,
we have no occasion to address the extent to which a party might rely upon common law principles in pursuing liability under the Act.” (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 19].) (Italics added for emphasis) Is the Court answering “No” to the questions posed above? Probably not. It is simply following the age old rule that an appellate court will
not rule on an issue that is not specifically presented by an appeal, leaving that question for another day.
All we know for sure from
McMillin is that every claim for construction defects falling within the scope of the Act must follow the prelitigation procedure. There are no hall passes for negligence and strict liability. The larger question posed by the last two paragraphs in the decision, is whether the law recognizes a cause of action for negligence and strict liability for construction defects based on the standards in Section 896. The answer will have to be worked out by judges and trial attorneys in courtrooms across the State! The parameters of this hybrid cause of action that the Court seems to have posited will need more careful consideration than can be offered on first reading of
McMillin v. Superior Court.
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Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!
May 10, 2017 —
Ben Reeves - Snell & Wilmer Real Estate Litigation BlogWhat law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April 15, 2017). It turns out, the note controls.
The Facts
In ZB, ZB, N.A. (ZB), a Utah bank, lent money to the Hoellers to purchase a commercial property in Missouri. The note included a choice-of-law provision stating that Utah law governed the debt. The deed of trust securing the commercial property, however, provided that Missouri law controlled “procedural matters related to the perfection and enforcement of [ZB’s] rights and remedies against the [p]roperty.” In 2012, the Hoellers defaulted, and the bank recovered the property through a trustee’s sale.
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Ben Reeves, Snell & WilmerMr. Reeves may be contacted at
breeves@swlaw.com
Eighth Circuit Considers Judicial Estoppel in Hazardous Substance Release-Related Personal Injury Case
April 11, 2018 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog On April 5, the U.S. Court of Appeals for the Eighth Circuit decided the case of
Kirk v. Schaeffler Group USA, Inc., et al., a personal injury action commenced in the U.S. District Court for the Western District of Missouri alleging injury resulting from the release of thousands of gallons of trichloroethylene (TCE) at the FAG Bearings Corporation’s (FAG Bearings) facility in Joplin, MO. The Court of Appeals reversed the District Court’s judicial estoppel ruling on the successor liability issue and concluded that the jury’s verdict on compensatory damages stands but their general verdict requires a new trial on Plaintiff’s punitive damages claim against FAG Bearings.
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Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLPMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
FEMA Administrator Slams Failures to Prepare, Evacuate Before Storms
October 23, 2018 —
Christopher Flavelle - BloombergFederal Emergency Management Agency Administrator Brock Long angrily criticized the failure of citizens to heed evacuation warnings and leaders to better prepare for natural disasters such as Hurricane Michael.
"It's frustrating to us because we repeat this same cycle over and over again," Long said during a press briefing Friday at FEMA headquarters in Washington. "If you want to live in these areas, you've got to do it in a more resilient fashion."
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Christopher Flavelle, Bloomberg
Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment in Pinellas County Circuit Court
November 29, 2021 —
Bradley T. Guldalian - Traub LiebermanOn September 20, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment in Pinellas County Circuit Court in St. Petersburg, Florida, on behalf of a Homeowner who invited an acquaintance to his house to assist him with hanging a gutter on his roof. While he was assisting the Homeowner installing the gutter, the Plaintiff fell from a ladder and sustained a comminuted left intertrochanteric (hip) fracture. The Plaintiff was taken to the hospital, where he underwent open reduction, internal fixation of his left hip fracture. He was hospitalized for five days and released in wheelchair. He incurred more than $70,000 in medical bills and was confined to a wheelchair for two months.
The Plaintiff filed a negligence action against the Homeowner alleging he improperly set up the ladder causing it to become unstable, thereby creating a dangerous condition on the premises which proximately caused his fall. The Plaintiff claimed the Homeowner breached the duty he owed the Plaintiff to provide safe and stable equipment for his use. After engaging in discovery, Mr. Guldalian moved for summary judgment arguing that because the Plaintiff could not explain in his deposition why he fell from the ladder, the Plaintiff could not establish—as a matter of law—the Homeowner was negligent, did anything, or failed to do something, that proximately caused his injury. In support of his argument, Mr. Guldalian submitted the affidavit of an investigator who inspected the ladder after the Plaintiff’s fall and found no defect in, on, or about the ladder, and affirmed that the area where the ladder was set up had no raised or defective areas which could have caused the ladder to become unstable.
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Bradley T. Guldalian, Traub LiebermanMr. Guldalian may be contacted at
bguldalian@tlsslaw.com
Supreme Court Upholds Prevailing Wage Statute
August 19, 2024 —
Ahlers Cressman & Sleight PLLCHistorically, the prevailing wage was calculated by averaging the wages within a certain industry and county. However, in 2018 the Washington Legislature amended the statute so that the prevailing wage would be assessed based on the highest wage set by collective bargaining agreements in the county. The amendment (RCW 39.12.015(3)) reads as follows:
(3)(a)…the industrial statistician shall establish the prevailing rate of wage by adopting the hourly wage, usual benefits, and overtime paid for the geographic jurisdiction established in collective bargaining agreements…
(b) For trades and occupations in which there are no collective bargaining agreements in the county, the industrial statistician shall establish the prevailing rate of wage by…conducting wage and hour surveys.
So, for example, if union engineers bargain for a wage, that is the wage all engineers in the county must be paid on public projects. The legislature passed this law for the sake of efficiency because it took significant resources for the Industrial Statistician to compute the prevailing wage for every trade and every county, but the law has significant knock-on effects.
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Ahlers Cressman & Sleight PLLC
Construction Termination Part 2: How to Handle Construction Administration When the Contractor Is Getting Fired
August 01, 2023 —
Melissa Dewey Brumback - Construction Law in North CarolinaIf you’ve been working as a design professional for any length of time, you know that you must be a chameleon on the construction project. You need to “step into the skin” of both the Owner and the Contractor to determine who is at fault, and who should pay.
You are usually the Initial Decision Maker (IDM), and so you have a duty under the AIA documents to act fairly and impartially in making those decisions. See AIA B101§3.6.2.4.
Even if you are not under an AIA contract, you still have that duty if you are the IDM or handling construction administration for the project. More often than not, however, it will be the owner asking you to support its termination of the contractor “for cause.”
Should you do so?
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Melissa Dewey Brumback, Ragsdale LiggettMs. Brumback may be contacted at
mbrumback@rl-law.com
