Following a presentation I made at a Seminar Group conference in Oregon on crane easements, one of my colleagues brought to my attention the recent NY case of Lend Lease (US) Construction LMB Inc. v. Zurich American Insurance Co. The NY Court of Appeals found that damage caused to a tower crane when Superstorm Sandy hit land was not covered under Zurich’s builders’ risk policy. While the policy contained a grant of coverage for “temporary works” (such as scaffolding, shoring, formwork and fences), the policy contained a “contractor’s tool exclusion,” which the Court found excluded coverage for the tower crane. The opinion addressed only the damage to the crane as opposed to damage caused by the crane, the latter being likely covered under other provisions of the policy. While not alone dispositive, the Court noted that the plaintiff contractor was unable to show that the value of the crane itself was disclosed as part of the “total project value” being insured under the policy. Given the costs and risks associated with heavy equipment, a good insurance evaluation at project inception should always consider coverage for large tools, equipment and machinery.
At some point, almost every tenant of a commercial lease is asked to sign a Subordination, Non-Disturbance and Attornment Agreement (an “SNDA”). Generally, the SNDA comes from the landlord’s lender sometime after the tenant’s lease has been signed and the term has commenced. It can be a complex document with onerous provisions for a tenant, and, without adequate counsel early in the process, a tenant may have little room to negotiate or revise an SNDA.
At its core, an SNDA contains three key provisions. First, the tenant agrees that, notwithstanding that the lease may pre-date the lender’s mortgage, the lease is subordinate and junior to the mortgage. Second, the lender agrees that, so long as the tenant performs its obligations under the lease prior to the expiration of applicable cure periods, the lender will not disturb the tenant’s occupancy or terminate the tenant’s lease in the event of foreclosure or other enforcement by the lender. The third prong is attornment: the tenant’s agreement to accept the lender (or other purchaser at foreclosure or its successor or assign) as the landlord following foreclosure. This exchange of promises gives the lender a senior right to its collateral and gives the tenant security in its lease. Continue Reading
A written teaming agreement is useful in defining the roles and responsibilities of a team of designers and contractors seeking to win a contract for a construction project. In my recent article for the Daily Journal of Commerce, I detail several key aspects of a well-drafted teaming agreement. Read the full article here.
“Teaming Agreements: When the Best Team May Not Be Enough” was originally published by the Daily Journal of Commerce on February 17, 2017.
In a very recent decision, the Fourth District Court of Appeal in Blanchette v. Superior Court affirmed the plain language of the Home Builder’s Right to Repair Act, holding that even a facially insufficient notice of defect triggers the obligation of a builder to respond within 14 days. The statute, Civil Code section 895 et. seq., was “expressly designed,” as the court pointed out, “to permit the parties to resolve claims without resort to litigation.” Therefore, the court stated that allowing the builder to ignore the deadline and not raise objections within that early timeframe would not further the purpose of the statute.
The court also stated that by the very terms of the statute itself, courts are obligated to strictly construe its terms. In this case, the court strictly construed the builder’s obligation to “acknowledge” notice – even a deficient notice – within the 14-day window after the builder’s receipt of the claim (which is typically no more than 19 calendar days under California law). In Blanchette, the builder did not acknowledge the claim until 24 days later, well beyond 14 days from receipt. When the builder failed to respond, the claimant filed a class action. The builder sought a stay of the lawsuit until the homeowner complied with the requirement to describe the defect in “reasonable detail.” While the trial court granted the builder’s request for a stay, following a writ to the Fourth District, the stay was ultimately lifted to allow the class action to proceed due to the builder’s failure to timely respond.
Takeaway for builders: As I have reiterated before to my clients and in presentations, such as recently at the Forward Planning Seminar of the North State BIA, prepare at the beginning of a project to be sued so that (1) you know how to respond when you do receive such a notice or lawsuit, or (2) even if you never face a claim, you can rest easy that you won’t be caught off guard.
One should never stop learning, so next week I will attend a three-day seminar presented by the Design-Build Institute of America. If I complete the seminar and pass a test, I will become a Designated Design-Build Professional. The DBIA has an informative page about certification on its website.
In preparation for the seminar, I completed an online course that introduced general concepts and terminology: project delivery systems (e.g., design-build); procurement methods (e.g., public bid), and contracting format (e.g., payment terms). The online course was a good introduction to topics that will be explored in more detail next week.
Design-build is increasing in popularity because it promotes collaboration between owner, contractor, and designer and thereby makes possible more creative and efficient solutions to design and construction problems. To be successful, however, participants in a design-build project need to have a clear understanding of the process and their roles. That is why training is important, both for my clients and for myself as their advisor.
I’ll report again when (if) I survive next week’s seminar.
The Supreme Court of Nevada stirred a great deal of controversy in its 2014 opinion SFR Investments Pool 1, LLC v. U.S. Bank, N.A., holding that a 1991 statute granting superpriority status to certain homeowner’s association (HOA) liens created a true priority lien such that its foreclosure extinguishes all other liens, including a first deed of trust on the property.
Prior to the SFR Investments decision, most lenders assumed the statute merely provided for a payment priority, so that upon a lender’s foreclosure of its deed of trust, the HOA would recover a portion of its overdue assessments—they certainly did not anticipate that an HOA would have the ability to wipe out a “first position” deed of trust. As one can imagine, the SFR Investments decision did not sit well with lenders and prompted a flurry of additional lawsuits, including a constitutional challenge claiming that the statute violates the Due Process and Takings Clauses of both the United States and Nevada Constitutions. Continue Reading
A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed by the parties, and might just result in a final agreement in one side’s sole discretion. In some cases, an LOI can be an enforceable agreement to negotiate in good faith toward a final agreement based, at least in part, on its stated terms. Even those LOIs that specifically say they are non-binding may, in fact, be binding. For instance, an LOI could be enforceable in its own right if all material terms of a final agreement are set out in the LOI and the parties’ conduct suggests they treated the LOI as a final agreement. Rather than being a “safe haven” that can be terminated at will without liability, an LOI can present great risk and unintended consequences to the parties if not recognized and handled with care. Missteps in documentation and/or subsequent conduct of the parties along the way could result in blown deals and damages. Even an otherwise carefully and clearly drafted LOI may not be free from risk or unintended consequences. Continue Reading
Last week, the California Court of Appeal ruled that a property owner was entitled to a jury trial in a dispute with a lender despite the fact that the loan agreement contained a jury waiver provision and a New York choice-of-law provision.
The case involved the San Francisco apartment complex known as the Rincon Towers. In 2007, the plaintiffs borrowed $110 million on a two-year loan to finance the acquisition. In 2009, the plaintiffs failed to repay the loan. The plaintiffs claimed that under the terms of the loan agreement they were entitled to a one-year extension of the maturity date. The lender disagreed and instead completed a nonjudicial foreclosure sale. Continue Reading
So, what’s the big deal if you’re a little “late” in giving your insurer notice of the claim or lawsuit against your company? That’s the question, albeit in essence, that the Ninth Circuit has posed to the California Supreme Court recently in an Order Certifying Questions, Pitzer College v. Indian Harbor Insurance Co.
Specifically, the Ninth Circuit is asking for legal insight as to the following:
1. Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis? May common law rules, other than unconscionability not enshrined in statute, regulation, or the constitution, be fundamental public policies for the purpose of choice-of-law analysis?
2. If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can a consent provision in a first-party claim insurance policy be interpreted as a notice provision such that the notice-prejudice rule applies? Continue Reading
Lurking in the depths of the Contractor Registration Act (Chapter 18.27 RCW) is an important statute that has the potential to eviscerate lien rights if not satisfied by contractors furnishing improvements on certain projects in Washington. RCW 18.27.114 requires that contractors working on residential projects or commercial projects of limited scope furnish a Model Disclosure Statement Notice to Customer (“Disclosure Statement”) prior to commencing work.
The form of this document and additional information required of a contractor can be found on the Washington Department of Labor & Industries (“L&I”) website. The Disclosure Statement advises the contractor’s customer (upfront in the contract documents usually, and prior to the commencement of work) of his/her rights and responsibilities, discloses the contractor’s registration and bonding requirements, and warns the customer of the contractor’s right to file a lien claim in the event of nonpayment. Continue Reading