Wyatt Real Estate & Construction Law

Wyatt, Tarrant & Combs, LLP

A Word of Caution to the Innovative…

Indiana Department of Insurance’s Title Division recently sent the following “word of caution” to all licensed title insurance agents about the restrictions on Provider Preferred Programs.  Considering the increased oversight of these types of interactions, at both the State and Federal level, I think it is worth repeating to all in the Indiana real estate world.

Forms of Inducement:

Currently, Provider Preferred Programs offered by Lenders and Realtors, may be an acceptable offering under those Indiana regulators DFI and PLA respectively, however, title agencies belonging to those programs are considered to be engaging in forms of inducement of title business, as explained in IDOI Bulletin 158 dated 11/7/2007. In most cases, this particular practice may have gone unaddressed in terms of fines and penalties, however, the Department’s position on this matter has been communicated and those in violation will receive fines/penalties levied accordingly. Title agencies/agents engaging in the following practices are considered to be Continue reading

Changes to the Interstate Land Sales Full Disclosure Act on the Horizon for Condominiums

The Interstate Land Sales CondominiumFull Disclosure Act of 1968 (“ILSA”), codified at 15 U.S.C. § 1701 et seq., was enacted in 1968 to protect purchasers of undeveloped property from schemes where developers marketed “subdivisions” which were actually remote plots of land, often located in deserts or underwater, and which were never intended to be developed. The Act makes it unlawful for a developer or agent to sell or lease any nonexempt lot without first registering the development with the Consumer Financial Protection Bureau (the “Bureau”) and providing the purchaser with detailed information about the property prior to the sale. See 15 U.S.C. § 1703. The Act provides numerous exemptions from the requirements of the Act, including exemptions for subdivisions with less than twenty-five lots (§1702(a)(1)), for the sale or lease of improved property (§1702(a)(2)), and for sales to builders (§1702(a)(7)).

The Act provides for criminal and civil penalties, most importantly including a two-year right of rescission where information was not provided to homeowners at the time of the sale. During the recent recession, underwater purchasers have seized on technical breaches of the Act and used the rescission remedy as a means to Continue reading

A deal is a deal…

In a decision announced last week, the Kentucky Supreme Court affirmed the validity of assignments of developer rights in subdivisions. The case, Your Community Bank, Inc. v. Woodlawn Springs Homeowners Association, Inc., concerned whether our client, Your Community Bank, could enjoy the rights of the developer under the subdivision’s declaration of covenants, conditions and restrictions. Your Community Bank stepped into the developer’s shoes when it accepted an assignment of developer’s rights from the developer’s estate and a deed to several lots in lieu of foreclosing on the subdivision. The original developer exempted itself from paying annual lot dues to the homeowners association until a home was built on a given lot. When the homeowners association asserted a lien for unpaid lot dues on vacant lots, Your Community Bank asserted that it had ALL the rights and responsibilities of the original developer, including the exemption.

The Nelson Circuit Court agreed but the Court of Appeals reversed. Your Community Bank appealed, and the Kentucky Bankers Association found the case compelling enough to file a friend of the court brief. The Kentucky Supreme Court found that the assignment of developer’s rights was valid and that Your Community Bank did not need to pay lot dues until a home was built on a given lot.

Although the case contains little sweeping language, the holding is important for banks and developers alike. If the Court of Appeals opinion had been left in place, banks and successor developers would have had no idea what development rights could or couldn’t be assigned, stalling redevelopment of unfinished projects throughout Kentucky.  With this opinion, the Kentucky Supreme Court reasserted that a deal is a deal.

Cliff Ashburner, Louisville

Indiana takes a balanced approach to Home Improvement Contract Act

On November 14, 2014, the Indiana Court of Appeals issued a well-reasoned opinion in Timothy W. Paul v. Stone Artisans, Ltd., 29A04-1406-PL-258, that reduces the potential harshness of Indiana’s Home Improvement Contract Act (“HICA”). The HICA was enacted in response to what the courts have referred to as “well-known abuses found in the home improvement industry.” It requires a home improvement contract to contain nine specific elements. The contract at issue contained all but two of these elements: the approximate starting and completion dates of the home improvements and the printed name of the consumer below their signature. Under a strict reading of the HICA, these omissions are considered “deceptive acts” making the contract voidable and opening the contractor to damages.

In this case, even though the homeowner received the benefit of the home improvements and did not complain of the workmanship, he nevertheless attempted to void the contract based upon the omissions and violation of the HICA. The Court reasoned that “the public policy underlying HICA is to protect consumers when making home improvement contracts . . . and not enforcing the contract would do little to further the policy” behind the HICA. The Court held that trial courts must apply a “balancing approach and examine certain factors to determine if the contract violates public policy,” including (1) the subject matter of the contract, (2) the strength of the public policy, (3) the likelihood that the action requested will further that policy, (4) the seriousness of the forfeiture to be suffered by the party seeking enforcement of the bargain, and (5) the parties’ relative bargaining power and freedom to contract. The Court agreed with the trial court that despite “any deficiencies in the contract, [the homeowner] received the benefit of [contractor’s] services and was fully aware of all the terms of” the relationship with the contractor; therefore, upholding the validity of the contract did not violate the public policy behind the HICA.

The full text of the opinion can be found here.

Jason Lopp, New Albany

Mississippi – Construction Lien Rights Expanded

LienFor many years, Mississippi was part of a small minority of states that did not allow construction liens on property unless the lienor had a direct contract with the property owner or the owner’s agent. The Mississippi legislature recently abolished the old one–tiered construction lien approach and adopted provisions which allow second-tier subcontractors and suppliers, as well as prime contractors, to file construction liens on non-residential private projects. The new lien structure will undoubtedly have an impact on all parties involved in a project, from contractors to owners to project lenders.

While the number of parties that can file a lien has grown substantially, including now subcontractors and suppliers, as well as architects, engineers and land surveyors, there are strict limitations on when and how liens are filed.

  1. To have lien rights, both the first-tier and second-tier lienor must be properly licensed in Mississippi.
  2. Liens must be filed in the chancery clerk’s office where the property is located within 90 days following the lienor’s last work/services performed or materials furnished.
  3. Filed liens must substantially comply with Mississippi statutory format.
  4. Second-tier lienors must provide “pre-notice” within thirty days after the first delivery of labor, services or material.
  5. Lienors must mail a copy of a filed lien to the owner and contractor, if applicable, or their registered agents, within two business days after the lien is filed.
  6. Lienors must be in “substantial compliance” with their contract, subcontract or purchase order.

The timing of actions for payment and rights to ‘bond off” claims have also been impacted by the new legislation. Check back with The Dirt for more information as the new Mississippi lien regime is put into practice.

Julie Sneed Herlihy, Jackson, MS

TIMING IS EVERYTHING: What a remote contractor (subcontractor) should know about notice and timing requirements under Tennessee’s Mechanics’ and Materialmen’s Liens Statute

clockThe notice and timing requirements contained in Tennessee’s Mechanics’ and Materialmen’s Liens statute Tenn. Code Ann. § 66-11-101 et seq. can prove fatal to the lien rights of an unwary lien claimant, especially a remote contractor, laborer or supplier. Tennessee’s lien statute imposes different requirements for a party that is not in direct contractual privity with an owner to obtain a lien. In particular, the lien statute requires that a remote contractor provide two types of notices in a particular time frame in order to obtain a mechanics’ lien: (1) Notice of Nonpayment; and (2) Notice of Lien.

Tenn. Code Ann. § 66-11-145 requires that a remote contractor provide a Notice of Nonpayment to the owner and prime contractor as a condition precedent to obtaining a lien. A Notice of Nonpayment stating that the subject account is unpaid must be delivered to the owner and prime contractor within 90 days of the last day of each month within which the remote contractor performed the work, not the date the bill goes out. The Notice of Nonpayment must be specific, too. The Notice should include: (1) name of Continue reading


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