Publications

Section Newsletter Articles on Construction Law

Implied warranty of habitability waiver to developer not enforceable against contractor By Justin L. Weisberg Construction Law, June 2013 The First District Appellate Court released an opinion on June 21, 2012 which has a significant impact on many residential construction defect claims alleging a breach of the implied warranty of habitability.
Cypress Creek decision legislatively reversed By Paul Peterson Construction Law, May 2013 The practical effect of PA 97-1165 is that lien claimants will be paid their contract amount on most completed jobs whether or not they have priority over the construction lender.
Protecting contractor rights in bankruptcy By Samuel H. Levine Construction Law, May 2013 A discussion of the bankruptcy issues most often encountered in the construction setting.
Subcontractor rights under the Miller Act: A case study By Joshua Atlas Construction Law, May 2013 In Capital Computer Group, LLC v. The Gray Insurance Company, the Eleventh Circuit Court of Appeals determined that a subcontractor who sub-subcontracted 100% of its scope of work was entitled to assert a claim under the Miller Act because the subcontractor still had obligations on the project, and a substantial and important relationship still existed with the general contractor, even if the subcontractor did not actually perform any work.
Just because it says so, doesn’t make it so Construction Law, March 2013 The lesson from Westfield Insurance Co. v. FCL Builders, Inc. is that general contractors need to be more proactive in securing coverage than just obtaining a certificate of insurance.
Public sector qualifications based selection of design professionals in Illinois By Bruce S. Bonczyk Construction Law, March 2013 Illinois is one of several states that uses a statutory system of qualifications based selection for design professionals seeking projects on the state and local levels.
Contractor may delegate safety duty to subcontractor By Ghazal Sharifi Construction Law, December 2012 The recent case of Oshana v. FCL Builders, Inc. held that a contractor may now delegate the safety obligations contained in its contract to a subcontractor and thus avoid liability for any injuries to a subcontractor employee.
“The devil is in the details”: Coverage issues to consider in light of Westfield Insurance Company v. FCL Builders Construction Law, December 2012 If your client is an “additional insured” instead of a “named insured,” your client will have greater coverage protection, will be subject to fewer exclusions, will not be obligated to pay the deductible, and will not subject to reporting requirements.
The leaky “pay-if-paid” clause: A fluid story of the “ifs” and “whens” of contingent payments By Nicholas J. Johnson Construction Law, December 2012 Subcontractors and contractors would both be well served in making themselves aware of the proper means of creating a “pay-if-paid” clause, and the various ways it might be circumvented.
ACORD insurance certificate changed By Bruce H. Schoumacher Construction Law, May 2012 When drafting construction contracts, attorneys and their clients must be aware of the limitations of revised ACORD 25. They will have to develop contract provisions which recognize those limitations.
ARRA domestic source requirements: “Buy American”—A complex maze having serious non-compliance consequences By Stanley N. Wasser Construction Law, May 2012 This article is intended to provide you with basic guidance for what you will find is a complex issue having potential serious non-compliance consequences.
The Illinois sworn contractor’s statement: An owner’s defense and an owner’s obligation By Paul Peterson Construction Law, May 2012 Acceptance of a statutory sworn contractor's statement that does not meet the requirements of Section 5 may leave the owner with obligations and no corresponding benefits. 
On the psychology of incompetence in the construction process By Stanley P. Sklar Construction Law, December 2011 The author opines that the art of construction is similar to the art of war, but with one very major exception—that the construction process cannot become so adversarial that it rivals war in its destructiveness.
Up Cypress Creek: Mechanics liens get an inferiority complex By Eric Singer Construction Law, December 2011 While the Cypress Creek case has been decried as the death of the Mechanics Lien Act, it merely clarified what lenders have always been able to accomplish.
MBE/WBEs as third-party beneficiaries of construction contracts By Peter Graham Construction Law, October 2011 A look at the the consequences of failing to heed MBE/WBE provisions.  
Must a homeowner establish the contractor’s state of mind to state a claim for a violation of the Illinois Home Repair and Remodeling Act? By Nathan B. Hinch Construction Law, October 2011 In light of the recent amendments to the Illinois Home Repair and Remodeling Act, must a homeowner also establish the contractor's state of mind in claims involving HRRA violations?
The new wave of insurance for construction defects? Four states enact statutes favoring coverage for faulty workmanship By Clifford J. Shapiro and Kenneth M. Gorenberg Construction Law, October 2011 Legislation recently enacted in Colorado, Hawaii, Arkansas, and South Carolina addresses whether claims alleging construction defects are covered by commercial general liability insurance policies.
Construction project delivery methods: Which is best for you? By Mark C. Friedlander Construction Law, May 2011 A look at the most common types of construction project delivery methods, including the newest methods that have received significant acclaim.
Changes and continued uncertainty for construction industry with CCDD law By Alison K. Hayden Environmental Law, February 2011 Public Act 96-1416 amends the Illinois Environmental Protection Act, 415 ILCS 5/1 et seq., to regulate facilities which accept soil and Clean Construction Demolition Debris for disposal.
Basic construction insurance coverage By Bruce H. Schoumacher Real Estate Law, September 2010 A guide to drafting construction insurance provisions.
Construction law: What’s new in 2010 By Bruce H. Schoumacher, Alicia Garcia, and Emily Widmer Real Estate Law, September 2010 Recent construction law cases.
Special Committee on Construction Law: Year in review By Samuel H. Levine Real Estate Law, September 2010 An introduction to this issue from the Chair of the ISBA's Special Committee on Construction Law, Samuel Levine.
Extra work is extra work By Raymond A. Fylstra Corporate Law Departments, September 2009 Many formal construction contracts explicitly state that extra or additional work must be authorized by a written change order signed by the owner. Although there are some exceptions, such clauses normally will be enforced if they are clear.
LEED in real estate By Margery Newman Real Estate Law, September 2009 Leadership in Energy and Environmental Design (“LEED”), also known as green building, is taking hold across the country. According to the National Association of Home Builders “between 40 percent and 50 percent of the homes built in 2010 are expected to be green.” Here's what you need to know.
Phase I Environmental Site Assessments: The familiar stranger By Phillip R. Van Ness Real Estate Law, February 2009 An attorney charged with guiding his or her Illinois client through a Phase I doesn’t have to understand the science behind it (although that surely won’t hurt). But he or she does have to know whether the Phase I at least prima facie appears to comport with the essential elements of a valid Phase I. At this point, it may be advisable to secure the services of an environmental lawyer, but even a non-technically trained lawyer can put together a checklist that greatly increases the odds that the client will have a Phase I it can rely on.  
New construction dilemma / Ethical issue scenario By Robert Duffin and Myles Jacobs Real Estate Law, December 2008 An owner of a large lot located in a recorded subdivision desires to subdivide the lot into two lots and construct a residence on each lot.
Guidelines for buyer’s review of new construction contracts By David Vlcek Real Estate Law, June 2008 While no two new construction contracts are the same, there are enough similarities in new construction contracts commonly used in Illinois to make it possible to provide a set of concrete notes and suggestions to lawyers representing buyers.
The Illinois Employee Classification Act: A primer By Christopher P. Keleher Corporate Law Departments, December 2007 Construction contractors doing business in Illinois will face a new regulation that effectively deems all construction workers as their employees.
Liability for construction claims By Margery Newman Real Estate Law, September 2007 The construction industry is rife with situations in which one party may become liable to or for another party in the construction process.
Lien cuisine and other construction delights By Samuel H. Levine Commercial Banking, Collections, and Bankruptcy, July 2007 A lot has happened in the past three years in the area of construction law and mechanics liens. The Mechanics Lien Act has been amended.