Author: LBM Law

Buyers of New Construction: Beware of the Pennsylvania Association of Realtors®!

By: Eric C. Milby, Esquire

The Pennsylvania Association of Realtors’ (“PAR”) proposed contractual scheme for the sale of new construction is indefensible. By design, it leaves buyers of new homes with little to no protection against builders and sellers who are negligent, incompetent, or worse, unscrupulous and frequently insolvent. In short, PAR instructs its’ clients, buyers of newly constructed homes, to proactively offer to buy their new home with no warranties, express or implied, from the seller. To make matters worse, the proposed agreement includes no requirement that the house be completed in a good and workmanlike manner and provides no guidance on obtaining a viable builder’s warranty.

1. Buyers are encouraged to use PAR’s form agreements.


PAR is a professional trade association for real estate agents licensed in Pennsylvania. PAR is also a vendor of forms for use in real estate transactions including several suggested form Agreements of Sale. When the buyer’s agent, who is usually a member of PAR, provides the buyer with a form Agreement of Sale, it is usually a PAR form. PAR promotes a form “Standard Agreement for the Sale of New Construction (ASNC)” for the purchase of a new construction home. To be clear, the majority of the agents who are members of the association are not the focus of this criticism. Rather the PAR forms committee has prepared and approved these forms and I suspect most agents are unaware of the dangers of the provisions, or lack of provisions, discussed herein. Often the agents are unsuspecting victims when they land on the wrong end of a lawsuit brought by a buyer who was sold a defective home and had their rights severely restricted by the agent who unwittingly supplied the contract form.

2. Buyers initiate the offer to buy.

Though most people taking the time to read this will understand the process of purchasing a home, it is worth repeating. Homes, new or otherwise, are advertised for sale. Customarily, an interested buyer prepares an offer to purchase the home on a form Agreement of Sale usually provided to them by the buyer’s agent. A contract is formed when the seller countersigns the Agreement of Sale that was proposed by the buyer. In other words, the buyer, in the first instance, crafts the terms of the offer. This article is concerned with the ASNC form that PAR suggests for initiating an offer. In any negotiation, an initial proposal typically gets countered or negotiated. So, PAR recommends that the Buyer open the negotiation with a position that is highly unfavorable to the buyer and should not be acceptable to the buyer. In doing so, PAR does a great disservice not only to its clients, the buyers, but also to its members, the agents who usually have no legal training and rely on PAR to vet and provide appropriate forms.

3. Widespread Construction Defects.

Litigation over defective construction has been escalating for years. Anybody in the residential real estate industry in Pennsylvania is aware of the problems. Disputes over defective stucco application leading to deteriorating structures and mold growth are an epidemic. The Greater Philadelphia Chapter of PAR recently held an event billed as “Stuccopocalypse”1 that states “Southeastern PA has been labeled the stucco failure capital of the world”. Attorney General Josh Shapiro filed complaints against 35 contractors in Pennsylvania in April 20192. PAR cannot claim to be ignorant of the extent of litigation. In July 2020, they updated their forms to fast track the path to litigation of buyer and seller disputes3. Yet they have taken no action to update the forms that exacerbate the buyers’ problems and undermine the incentive for builders to improve their craft.

3. The PAR Agreement does not require quality construction.

Nothing in PAR’s ASNC agreement requires the seller to construct the home to any standard of quality; not even so much as “habitable” or “code compliant”4. To the contrary, PAR’s recommended ASNC form disclaims all reliance on the plans and promotional materials that the Buyer almost certainly relied upon when purchasing a home that is still under construction:

All representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, their licensees, employees, officers or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement.

ASNC, para. 22(A). While a disclaimer of representations is not an unusual contractual provision, it is troubling that PAR would include that provision in a standardized buyer’s offer rather than including a space for the buyer to list any plans, specifications, and promotional materials that it relied upon. Indeed, the ASNC is specifically recommended by PAR for “the sale of a newly-constructed residence or future construction” yet there is no provision that binds the seller to the quality of the construction in the agreement that will bind the buyer to the purchase. The most that the agreement provides is a prefatory statement under the fifth sub-heading under “Construction and Permits” titled “Substitutions” that says: “Buyer and Seller acknowledge that the buildings and improvements on the premises will be substantially similar to the established building specifications”. “Established building specifications” however is not defined. That sub-paragraph goes on to permit the seller to substitute materials or products that are, in seller’s sole discretion, of equal quality. Otherwise, it is entirely left to the agent and buyer, who is often not represented by an attorney, to incorporate the plans, specifications, and sales materials. Buyers and agents often are not aware of the need to incorporate the documents relied upon and the resulting agreement fails to bind the builder to an acceptable standard of construction or even the pictorial representations and promises contained in the sales literature that was presented to the buyer.

Pennsylvania has no statutory New Home Warranty.

Pennsylvania does not have a statute requiring that sellers of new construction deliver a warranty to the consumer. Many other states do. For example, a seller of a new construction home in New Jersey is required to warrant the home as follows:

During the first year of a new home’s warranty, warranty coverage extends to defective systems, workmanship, materials, plumbing, electrical and mechanical systems, appliances, fixtures, and equipment, and major structural defects. From the commencement date of the warranty up to two (2) years from that date, the mechanical, electrical, and plumbing systems and major structural defects are covered. The builder is responsible for warranty coverage during the first two years. During the third through tenth years of coverage, only major structural defects are covered.

NJSA 46:3B-1et seq. In other words, a new home buyer’s protection from defective workmanship in New Jersey is not dependent on the terms of the written agreement. Conversely, there are no statutory warranty protections in Pennsylvania. If there is a major structural defect in the home discovered after the sale, the buyer’s remedies are largely limited to what is provided in or with the contract – the agreement of sale and any addenda. Absent negotiated contractual protections or an enforceable warranty, Pennsylvania buyers would be left with nothing more than threadbare and largely inapplicable implied warranties of fitness for a particular purpose5 and habitability6 (the “Implied Warranties”). But PAR even takes those Implied Warranties away from their buyers.

The PAR form eviscerates even the threadbare Implied
Warranties.

Notwithstanding the epidemic volume of subpar and defective construction that is prevalent in the new home construction industry, the PAR form takes a decidedly and disastrously pro-builder approach, directing the buyer to start the negotiation for the purchase of a new home by offering to purchase the home with no written warranty from the seller and even no implied warranties. Specifically, PAR’s form the ASNC agreement, contains the following pre-printed language:

Limited Warranty: Except as set forth in any new construction warranty that may be provided herewith, SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF WORKMANLIKE CONSTRUCTION, HABITABILITY, DESIGN, CONDITION, QUALITY OR OTHERWISE AS TO THE PROPERTY AND THE RESIDENCE AND OTHER IMPROVEMENTS CONSTRUCTED THEREON, AND SELLER HEREBY EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATIONS OR WARRANTIES. Buyer hereby acknowledges and accepts such disclaimer and agrees to waive any and all rights Buyer may have by virtue of such representations and warranties. Except for the warranties provided by Seller, Buyer assumes the risk of any and all damage occurring in or appearing on the Property from the date of settlement, regardless of the cause thereof. Buyer’s assumption of this risk is partially in consideration of the amount of the purchase price of the Property which is lower than it would be if Seller was to be held responsible for any such risks by virtue of said expressed or implied representations or warranties.

ASNC, Para. 16(b)(emphasis in original). This is the heart of my criticism with the ASNC. It is inexcusable that PAR would propose a scheme whereby the offeror gives up the heart of what it is purchasing in the initial offer. It is also a disservice to its agents who could be exposed to liability for recommending the form and whose value to the consumer is severely undercut by systematically proposing a position that is prejudicial to the Buyer. It is as if PAR is telling its buyers to go to a seller of new construction and say “If you will permit me the privilege of buying a home from you, I will absolve you of any responsibility to build a decent product for me.”

7. The PAR form does not require the Seller to Deliver a Builder’s Warranty

Despite the “Except as set forth in any new construction warranty . . .” language, there is nothing else in the ASNC that requires the builder to provide a warranty. Because the ASNC form is designed for use by a prospective buyer who is crafting the offer to purchase a home that is still under construction, the form should contain language requiring the seller to warrant the construction, workmanship, materials, plumbing, electrical and mechanical systems, appliances, fixtures, and equipment for three (3) years from the date of closing and to warrant the construction from any major structural defects for a period of twenty (20) years from closing. Of course, the seller may negotiate the length and scope of the warranty down, but the importance to the consumer and to the industry as a whole is that all parties understand the issue, that the negotiation occurs, and that the builders strive to achieve a suitable level of workmanship with the understanding that they will be held accountable for failing to do so. The ASNC has nothing of substance to protect the buyer or incentivize the seller.

8. The PAR form gives no guidance on obtaining an enforceable
warranty.

Warranties offered by a seller are frequently worthless. Commonly, any warranty offered by the seller is not backed by a third-party insurance or warranty company. It only requires the seller to repair defective workmanship defined in the agreement for the period of time defined in the warranty. The seller, however, is often a single purpose entity created to purchase the land, develop the home(s) and sell the home(s). In other words, the builder is frequently a limited liability company that exists only so long as it takes to construct and sell the home(s). There is nothing necessarily nefarious about that business model because every new real estate project even when initiated by the same principal investor(s) often has different equity investors and financing sources which justifies an independent corporate structure. However, the warranty should issue from an entity that has a longer life span and greater depth. This could be handled in a variety of ways such as requiring that the warranty issue from a third-party warranty company or that the seller represent that it will not dissolve and will maintain sufficient assets to honor the warranty for so long as the warranty exists.

9. Conclusion

The Pennsylvania Association of Realtors Standard Agreement for the Sale of New Construction (“ASNC”) is not an appropriate form for a buyer. No buyer should sign this agreement. The ASNC leaves a buyer exposed to an endless variety of construction defects with no clear remedy as against the builder or seller. Indeed, the ASNC is a disservice to the agents that are members of PAR because they will find themselves with unhappy clients or worse, the “deep pocket” in a lawsuit by a buyer who finds that their dream home has turned into a money pit. Any buyer of new construction should consult a confident real estate attorney before binding themselves to an agreement and ensure that they receive the home the intend to bargain for and a viable warranty to guard against the all too common latent construction defects.


1https://www.facebook.com/events/274405054346225

2 https://www.attorneygeneral.gov/taking-action/press-releases/attorney-general-josh-shapiro-takes-legal-action-
against-35-home-improvement-contractors/

3 https://www.parealtors.org/agreement-of-sale-to-see-some-changes-july-1/

4Section 10(f)(2) of the ASNC notes that a Seller’s Property Disclosure Statement need not be given if a one-year warranty is given, the home is inspected for code compliance, and a certificate of occupancy will issue. However, as explained further in this article, that is little to no protection for the buyer, particularly if the seller provides the disclosures in lieu of the warranty. Typically, new homes pass the code inspection but local building inspectors are not engineers and many latent defects such as stucco defects pass undetected.

5The implied warranty of fitness for a particular purpose protects a buyer when a seller knows that the goods are being purchased for a particular purpose but a ”’particular purpose’ differs from an ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to his business”. This has no application to a home buyer that purchases a home for its “ordinary purposes” as a home.

6 A claim for breach of the implied warranty of habitability represents a contract claim by a tenant against a landlord where the conditions of a tenancy are such as to make a rental home property uninhabitable.

Recent Pennsylvania Holding on Restrictive Covenants

By:  Stuart R. Lundy, Esquire

In a recent Lawrence County, Pennsylvania, case the court heard a case filed by the buyer of the assets of an accounting firm.  The parties had a written  Asset Purchase Agreement (“APA”) that contained a restrictive covenant precluding the seller from using its trade secrets after closing.  In the lawsuit, the buyer claimed that the seller violated the restrictive covenant after the restricted period had expired by using the client list to contact clients to notify them that the seller was returning to the accounting profession.

The court held that a client list is a trade secret; however, the court ruled that the restrictive covenant in the APA did not preclude the seller from contacting clients on the client list because: (a) it was after the restricted period had expired; (b) the clients contacted by the seller were family members, friends, or had been engaged in non-accounting business transactions with the seller after closing on the sale of the assets; (c) the contact with the clients was limited to a letter informing the clients that seller was once again rendering accounting services; and (d) the letter did not disparage the buyer.

As a result of the holding of the court and as a “belt and suspenders approach,” every restrictive covenant should: (a) specifically provide that a client list is a trade secret that may again never be used thereafter by the seller, directly or indirectly, including, but not limited to, after the expiration of the restricted period; and (b) that anyone on the client list including, but not limited to, family, friends, and persons engaging in other types of business with the party may not be contacted at any time in the future, directly or indirectly, for any reason related to the type of business identified in the agreement.

 

Recent Pennsylvania Supreme Court Ruling on Removal of a Trustee

By:  Stuart R. Lundy, Esquire

One of the key issues in preparing a trust is to insert language to allow for the removal and replacement of a trustee without judicial approval.  Why?  The Pennsylvania Supreme Court recently unanimously ruled that the Pennsylvania Uniform Trust Act (the “Act”) does not allow the removal of a trustee, even if all of the beneficiaries of the trust unanimously agree to the change, unless:  (a) the language of the trust provides for such removal; or (b) such removal is approved by a court.  In other words, the beneficiaries of a trust cannot remove or replace a trustee at their discretion absent court approval.

 

When the creator of a trust appoints a trustee, he or she must recognize that a financial institution that has existed for decades and they believed would exist for decades thereafter could be the next Lehman Brothers.  Therefore, the creator of a trust must, in the trust itself, provide the beneficiaries with the ability to change the trustee if the beneficiaries unanimously agree.

Pennsylvania Superior Court Awards Residential Tenant Treble Damages in UTPCPL Action

By:  Stuart R. Lundy, Esquire

Recently, the Pennsylvania Superior Court awarded trouble damages to a tenant in an action against his landlord in an action for violation of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”).  In Nexus Real Estate, LLC v. Erickson, 2017 WL 2536524 (Pa. Super Ct. June 12, 2017), the Court held that the landlord’s conduct in refusing to repair a hole in the bathroom ceiling and taking nine months to repair a non-functioning HVAC unit was the type of intentionally wrongful and deceptive conduct that warranted treble damages under the UTPCPL.

Accordingly, residential landlords should be sure that they timely make repairs and do not make false promises to tenants regarding when repairs will be performed.

If you have questions about a landlord or tenant’s obligations under a residential lease and/or applicable law, contact one of our real estate attorneys.

IRS Extends Time for Federal Estate Tax Portability Election

By:  Stuart R. Lundy, Esquire

On June 9, 2017, the IRS issued a revenue ruling that provides a more liberal time frame for certain estates to make the federal estate tax portability election.  The portability election allows a surviving spouse to claim their deceased spouse’s unused portion of the federal estate tax exemption and add it to the balance of their own federal estate tax exemption.  The amount of the exemption ported to the surviving spouse is called the “Deceased Spouse Unused Exclusion” or “DSUE” amount.

Prior to the recent ruling, in order to utilize the portability election, the estate tax return had to be filed within nine months (or fifteen months if a prior extension was filed) after the death of the first spouse.  Now, for estates below the federal estate tax threshold (currently $5.49 million), the estate tax return must be filed within two years of the death of the first spouse in order to use the portability election.  The personal representative must state, “This return is being filed pursuant to Rev. Proc. 2017-34 to elect portability under § 2010(c)(5)(A)” at the top of the return.

For more information on the portability election, contact one of our estate planning attorneys.

 

The Pennsylvania Construction Workplace Misclassification Act

By:  Stuart R. Lundy, Esquire

Employers in the construction industry should be mindful of the Pennsylvania Construction Workplace Misclassification Act. This Act provides criteria to determine whether a construction worker is an independent contractor or an employee entitled to workers’ compensation insurance coverage and requires those working on construction sites to be classified as employees unless the employer can demonstrate that he or she is a legitimate independent contractor.

The criteria for determining whether a worker is an independent contractor are: (i) does the worker have a written contract to perform such services; (ii) is the worker free from direction by the employer over performance of their services; and (iii) is the worker engaged in an independent trade?

Accordingly, an employer who wishes to classify a worker as an independent contractor should insist on a written and executed independent contractor agreement with the worker that sets forth a series of representations by the worker that: (a) the services rendered by the worker require a specific skill; (b) the worker will be using his or her own tools; (c) the worker will independently determine how the services are to be performed for the employer; (d) the worker will provide liability insurance for the services rendered by the worker; (e) the worker will be paid a fixed fee for his or her services; (f) the worker will pay all taxes due on fixed fee received by the worker; and (g) the worker is entitled to render services for third parties in addition to the employer.

An employer who intentionally misclassifies an employee as an independent contractor may be found guilty of a third-degree misdemeanor.

Lundy, Beldecos & Milby‘s construction attorneys can help contractors determine whether a worker should be classified as an independent contractor or an employee and, if appropriate, prepare an independent contractor agreement.  Contact us for more information.

 

SUBLETTING, ASSIGNMENTS and COMMERCIAL REAL ESTATE LAW

Subletting and Assignments in Commercial Leases

A commercial tenant must understand that its business may change after it has executed a lease and taken possession of commercial space.  That change may cause them to want to either sublet a portion or all of the leased premises to a third party sublessee, or abandon the leased premises completely and, if possible, assign the lease to a third party assignee who would be responsible for all obligations under the lease.  Accordingly, it is important to remember a few key points with regard to this aspect of commercial leases.

First, most commercial leases preclude a tenant from subletting a portion or all of the leased premises or assigning the lease without the prior written consent of the landlord.  Therefore, commercial tenants should ensure that the lease provides that the landlord will not unreasonably withhold consent for a sublet or an assignment. 

Second, unless the lease specifies to the contrary, when a tenant sublets a portion or all of the leased premises, the original tenant remains fully liable under the terms of the lease.  By contrast, unless the lease or assignment specifies to the contrary, a tenant who assigns a lease is no longer liable under the terms of the lease.  In our experience, a commercial landlord will not consent to a sublease unless the tenant agrees to remain liable to the landlord if the sublessee does not timely fulfill all of the obligations of the lease. In addition, the landlord will likely want to be paid a fee for its time and the fee of landlord’s lawyer in evaluating the sublease and the sublessee.

Third, since the tenant remains completely responsible for the lease if the sublessee does not timely comply with the lease, the tenant should try to negotiate, before executing the lease, the removal in whole or in part of the prohibition on subletting. If the landlord will agree to remove the prohibition on subletting, the landlord may insist that the sublessee engage in the same use and/or insert additional restrictions on the sublessee’s activities if the landlord is concerned about the sublessee’s effect on the building.  These restrictions may include environmental hazards, noise, parking, and deliveries.

Fourth, if the landlord will agree that a tenant can sublease, the landlord will most likely want a written copy of the executed sublease.

Fifth, if a tenant wants to abandon the entire leased premises, it may want to assign the lease so that it no longer has any liability to the landlord under the lease.

Sixth, to convince the landlord to allow assignment of a lease, the tenant must understand that from the landlord’s perspective, the landlord is entering into a new lease with the assignee.  Therefore, the landlord will want to evaluate the assignee in the same manner that the landlord evaluated the the original tenant. 

Commercial leases are generally prepared by the landlord and, therefore, most of the language in the lease will favor the landlord.  A commercial tenant must review every provision of the lease and negotiate specific changes to the lease that are customary and reasonable based upon the type of lease, the location of the leased premises, and numerous other factors.  

The real estate lawyers at Lundy, Beldecos & Milby routinely draft and negotiate commercial leases for both landlords and tenant. We have the experience to provide advice to protect your rights and reduce your risk. Please contact any of the real estate attorneys of Lundy, Beldecos & Milby for further information regarding legal services in this area.

Pennsylvania Enacts Sweeping Changes to Liquor License Laws

The Pennsylvania General Assembly passed the first major overhaul of liquor laws in 80 years. Pennsylvanians can now purchase wine at grocery stores, receive it in the mail, and purchase beverages 24/7 while in a casino.

Signed into law on August 8th, 2016, Act 39 is one of the most significant changes to Pennsylvania’s liquor laws since prohibition. It represents a major shift that could presage greater privatization of the liquor industry in Pennsylvania. The new law addresses a variety of issues including receiving wine through the mail, grocery store sales, and permitting customers to take home wine purchased in restaurants and bars. 

Licensed restaurants and hotels may now sell up to four bottles of wine per customer to take home. There is an initial $2,000 license fee which must be renewed annually.  The take-out rules permit restaurants to sell wine to late-night dinner patrons who are unable to purchase wine from closed liquor stores. A liquor license attorney from Lundy, Beldecos & Milby can help restaurant and bar owners gain access to this potentially lucrative new business. 

Moreover, the markup on special orders was reduced from thirty to ten percent, which represents huge savings on specialized wine lists. 

The bill also allows bed-and-breakfasts to provide one bottle of wine per customer at check-in, provided the guest is staying overnight. 

Among the other changes, wine producers can now direct ship up to 36 cases (9 liters of wine per case), in any calendar year to a Pennsylvania resident for personal use, breweries may sell their beers at farmer’s markets, and gas stations may sell alcohol with PLCB approval.

To learn more about how these new liquor laws will impact your business, or for a liquor licensing attorney, please contact Lundy, Beldecos & Milby directly.

 

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