Real Estate & Construction

By: Patrick Tighe

If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant.  However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

  • Do Not Breach the Peace.  It is vital when performing a lockout to not breach the peace.  What constitutes a “breach of the peace” depends on the particular circumstances at hand. 

Continue Reading Best Practices: Commercial Lockouts in Arizona

RESHAPING AGREEMENTS | Oral Agreements Must Be Written in Stone Reuse, reshaping, and/or reapplication of existing materials was the goal in this roadway rehabilitation story. The intermediate Texas Court of Appeals aptly stated, “[r]oad construction is ubiquitous in Texas and sometimes ends in disputes between the contractors who do that work.” The same could be […]
The post Roads & Bridges | Reshaping Agreements appeared first on Heavy Construction Law Blog | Jonathan Straw.
Continue Reading Roads & Bridges | Reshaping Agreements

A recent article published by Roads and Bridges magazine reports that the Office of Management and Budget is working to broaden the scope of the Buy America and Buy American Acts.  Some of these efforts were intended by the 2021 Infrastructure Investment and Jobs Act (IIJA).  But the latest effort goes beyond the intended scope of the IIJA by […]
The post IIJA | Does Closing a “Giant Loophole” Cost Contractors? appeared first on Heavy Construction Law Blog | Jonathan Straw.
Continue Reading IIJA | Does Closing a “Giant Loophole” Cost Contractors?

Buy American Plan Gets an Update | Roads & Bridges The Office of Management and Budget is developing standards to replace the current Buy American Act standards. View article. OFF THE CUFF | Jon’s Comments on “Buy American Plan Gets an Update” article: As the Biden Administration tries to close a purported “giant loophole” in […]
The post Roads & Bridges | Buy American Plan Gets an Update appeared first on Heavy Construction Law Blog | Jonathan Straw.
Continue Reading Roads & Bridges | Buy American Plan Gets an Update

Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges Online Publication A Shallow Concrete Pour Leads to an Interesting Lawsuit January 1, 2023  
The post Roads & Bridges <br> Where Does the Buck Stop? appeared first on Heavy Construction Law Blog | Jonathan Straw.
Continue Reading Roads & Bridges Where Does the Buck Stop?

As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved.  This is only for subcontracts created on/after 1/1/23. Also for subcontracts created on/after 1/1/23, the prime must specifically identify and notify the sub of withholding as underlined below. Per Va Code 11-4.6(C), for any withholding, the prime […]
The post Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023 appeared first on Heavy Construction Law Blog | Jonathan Straw.
Continue Reading Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023

By: Robert A. Henry and Emily R. Parker

The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed.   It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally.  

The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied
Continue Reading The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

The contractor incurred the Labor Department’s wrath


because the company paid its workers on a piece-work basis, but because it did not keep accurate time records to show that the wages paid satisfied  minimum wage and overtime requirements.

In 2020, while the Labor Department’s lawsuit was pending, Judge Snow issued an injunction ordering the contractor to:

  • stop maintaining false records;

  • implement a reliable timekeeping system under which employees would clock and clock out each day;

  • maintain accurate and complete records of wages paid and to stop paying wages through non-payroll accounts;

  • stop listing false regular rates of pay on

Continue Reading Piece work done wrong: Contractor settles with Labor Department for $2.6 million

By: Christian Fernandez

Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable deposit,” but each typically denote a negotiated amount of money that a seller is entitled to retain should a buyer breach a purchase and sale agreement. The purpose of liquidated damages is to provide the parties with certainty when actual damages arising from a breach
Continue Reading Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.

Shutting down a boisterous short-term rental “party house” is not easy, but the right combination of legal and administrative strategies and an understanding of local ordinances may help restore peace and quiet to your neighborhood.

This article was originally published in December 2020.

A Serious Problem

For neighbors, the consequences are real and serious. An “unruly gathering” can result in:

  • increased vehicle and pedestrian traffic (including Uber and Lyft pickups and deliveries);

  • parking congestion (on public and private property);

  • noise from guests, vehicles, music, fireworks, etc.;

  • public intoxication;

  • trespassing (including unwanted visits from disoriented guests);

  • sanitation problems (trash, bottles and

Continue Reading Fighting back against party houses and other short-term rental nuisances

Liquidated damages provisions are generally enforceable if they are intended to compensate the non-breaching party rather than penalize the breaching party.

The Court’s decision in

Young v. Allen Homes

provided more guidance on how to determine whether a particular liquidated damages provision is enforceable in the construction context. This guidance can help owners avoid common mistakes in drafting such provisions before construction begins, and it can help contractors resist unfair liquidated damages claims at the end of a project.


In April 2018, Michael and Debra Young hired Allen Homes to build their new home. The parties’ contract called for
Continue Reading Liquidated damages in construction contracts: Are they enforceable?

By: Ben Reeves

The Arizona Supreme Court recently clarified that a judgment lien does, in fact, attach to the proceeds of the sale of a homestead property. See In re McLauchlan. In sum, if the sale of a home produces more than the homestead exemption amount, then a judgment creditor can collect from those excess sale proceeds.

A few prior decisions held that a judgment could NOT recover any proceeds from the sale or foreclosure of a homestead property. See In re Rand, and Pac. W. Bank v. Castleton. These decisions are now effectively overruled.
Continue Reading The Arizona Supreme Court Confirms that Judgment Liens Attach to Homestead Property

By Rick Erickson

Our clients probably spend significant time, money and effort refining and updating their contract provisions covering indemnification and the duty to defend claims arising on their projects. But they should also consider spending an appropriate and adequate amount of time, money and effort when sending notices, or “tenders,” to enforce those critical provisions. Tenders demanding defense and indemnity are strictly interpreted based on what the contract documents require. Getting tenders wrong can result in losing one of the most significant risk-shifting tools in the contract. It can also be a monumental mistake if insurance coverage for indemnification
Continue Reading Don’t Be Lazy with Your Tenders

For a business of any size, a single hack could threaten the entire company. Precautionary measures can help protect you from financial calamity.

The headlines about rising costs and interests rates are everywhere. But what about the rising costs of scams?

By now, you probably heard a story of someone you know falling for an e-mail scheme and sending money overseas. But unlike the schemes of old, people are not falling for the “Nigerian prince” promising riches. Instead they are victims of schemes that look more like identity theft. How do you know that the person reading the e-mails you
Continue Reading Hackflation: A real business threat that is not going away soon