Cambridge Massachusetts Building Expert Directory

Do We Really Want Courts Deciding if Our Construction Contracts are Fair?

March 19, 2015 — Christopher G. Hill – Construction Law Musings
As I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers. It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction. Of course, as soon as I posted last week, my friend and colleague Scott Wolfe (@scottwolfejr) commented on that post and then gave his two cents worth at his Zlien blog. The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or discuss them with a construction attorney prior to signing them. I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them. As to Scott’s second reason, I have always warned here at Musings that you should read your contracts carefully because they will be the law of your business relationship in the future. The first of his two points is more interesting and in some ways more easily supported. However, where we are speaking of contracts between businesses where both sides are bound by the terms of the contract, it begs the question of whether in seeking to make contracts more “fair” we could add a layer of uncertainty that could cause more problems than it solves. Do we really want courts stepping in after the fact to renegotiate the terms of a deal that was struck months or possibly years before because one judge believes that the deal was too one sided? Do we really need such “Monday morning quarterbacking?” Is one person’s idea of “fair” better than another’s when both parties to the contract had the full ability to read, negotiate and possibly reject the deal long ago? Personally, I think that the answer to these questions is, in all but the most egregious cases or where the legislatures have stepped in adding certainty (whether to the good or bad), “No.” Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

The Role of Code Officials in the Design-Build Process

November 16, 2023 — Grace Calengor - Construction Executive
Building codes are an integral part of the design-build process, but what role do building code professionals play throughout that process? Kevin McOsker, vice president of technology services for the government relations department at the International Code Council, breaks it down, from basic design to groundbreaking ideas to incorporating new technology and retrofitting older builds. McOsker, whose experience includes serving as building official for the city of Las Vegas, is no stranger to striking architecture and the safety protocols that go along with it. He believes that safety protocol starts before the contractors begin building and that contractors should be involved throughout the entire journey. Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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DC Wins Largest-Ever Civil Penalty in US Housing Discrimination Suit

November 15, 2022 — Kriston Capps - Bloomberg
Three real estate companies operating in Washington, DC, will pay record-breaking penalties in a suit brought by the city for illegally discriminating against tenants who use Section 8 vouchers and other forms of housing assistance. The attorney general for the District of Columbia, Karl Racine, announced on Thursday a settlement for $10 million. While fair housing cases involving lenders have resulted in larger compensation payouts, $10 million is the largest civil penalty ever levied in a housing discrimination case. In 2020, the city sued several entities — DARO Management Services, DARO Realty and New York-based parent company Infinity Real Estate, as well as several executives — over housing practices in the District. DARO Management operates and rents some 1,200 residential units in more than a dozen apartment buildings spread across Wards 1, 2 and 3, which include DC’s more affluent areas. (DARO Realty owns the properties, DARO Management operates them, and Infinity owns both affiliates.) Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

Contractors’ Right to Sue in Washington Requires Registration

July 03, 2022 — John Leary - Gordon & Rees Construction Law Blog
Summary: In Washington, contractors must be properly registered in order to pursue a legal action against a customer for breach of contract. Dobson v. Archibald, a February 2022 decision by the Washington Court of Appeals, reinforced how the governing statute – RCW 18.27.080 – does not simply create an affirmative defense but establishes a mandatory pleading prerequisite.1 Discussion: In 2018, Archibald hired Dobson to refinish his hardwood floors for $3,200. Dobson was not a registered contractor. She had been referred to Archibald by acquaintances who were familiar with her construction and home repair work, including improvements Dobson had made to her own home. Archibald paid Dobson a $700 deposit before Dobson began her work. At the completion of the floor repair project, Archibald was unhappy with the appearance of the floors and informed Dobson that he would not pay the remaining $2,500. Read the court decision
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Reprinted courtesy of John Leary, Gordon & Rees
Mr. Leary may be contacted at jleary@grsm.com

Potential Extension of the Statutes of Limitation and Repose for Colorado Construction Defect Claims

April 27, 2020 — David M. McLain – Colorado Construction Litigation
On January 27th, Senator Robert Rodriguez introduced SB 20-138 into the Colorado Legislature. The bill has been assigned to the Senate Judiciary Committee and has not yet been scheduled for its first hearing in that committee. In short, Senate Bill 20-138, if enacted, would:

Extend Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
Require tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
Permit statutory and equitable tolling of the statute of repose.

Colorado’s statute of repose for construction defect claims are codified at C.R.S. § 13-80-104. In 1986, the Colorado Legislature set the statute of repose period at 6+2 years. For the last 34 years, Colorado’s statute of repose for owners’ claims against construction professionals has been substantially the same, to wit:

(1) (a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.

(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Breaking Down Homeowners Association Laws In California

April 03, 2019 — Lauren Hickey - Bremer Whyte Brown & O'Meara LLP
Purpose of HOAs Property ownership often combines elements of individual and common ownership interests. For example, a property owner may individually own his or her living quarters, but also own a common interest in amenities that are considered too expensive for a single homeowner to purchase individually (such as a pool, gym, or trash collection service). Properties with such elements usually take the form of apartments, condominiums, planned developments, or stock cooperatives (together known as “common interest developments” or “CIDs”). Whenever a CID is built, California law requires the developer to organize a homeowner association (or “HOA), which can take several different names, including “community association”. Initially, the developer relies on the HOA to market the development to prospective buyers. Once each unit in the development is sold, management of the HOA is passed to a board of directors elected by the homeowners. At that point, the primary purpose of the HOA shifts to maintenance of common amenities and enforcement of community standards. Dues/Assessments HOAs generally charge each homeowner monthly or annual dues to cover the cost of their services. HOAs may also charge special assessments to cover large, abnormal expenses, such as the cost of upgrades or improvements. The amount charged in dues and assessments is established by the HOA’s board of directors, within the limits set by the HOA’s governing documents and California Civil Code section 1366. Section 1366 provides that HOA dues may not be increased by more than 20 percent of the amount set in the previous year, and the total amount of any special assessments charged in a given year generally may not exceed 5 percent of the HOA’s budgeted expenses. Read the court decision
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Reprinted courtesy of Lauren Hickey, Bremer Whyte Brown & O'Meara LLP

Real Estate & Construction News Round-Up (10/27/21)

November 19, 2021 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Commercial real-estate sales surge in the third quarter, blockchain-integrated real estate is poised to span into new sectors, a major home builder is teaming with a Texas startup to create a community of 100 3-D printed homes, and more.

In the not-too-distant future, it is predicted blockchain-integrated real estate will be implemented in sectors beyond payments via digital currency, spanning to automated transactions, smart contracts, and more. (Adam Redolfi, Forbes)
Despite warnings that the COVID-19 pandemic would erode property values, purchases of apartment buildings, life-science labs and industrial properties resulted in commercial sales of more than $193 billion in the quarter, up 19% compared with the same three months in 2019. (Peter Grant, The Wall Street Journal)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Firm Announces Remediation of Defective Drywall

October 16, 2013 — CDJ STAFF
The residents of Villa Lago at Renaissance Commons will be relieved of their problems with defective Chinese drywall, according to an announcement from their legal counsel, Whitfield Bryson & Mason. Gary E. Mason, a founding member of the firm, announced to homeowners that remediation would begin on November 1. “The project will start with about 30 units on the top floor and will continue floor by floor for the next 12 months.” Residents will be moved out of their units for about three months while all drywall is removed and replaced. Read the court decision
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