Ownership and Licensing in Design Agreements
April 14, 2026 —
Abby Dvorkin - Snell & WilmerThe ownership and licensing of design documents in professional services agreements play a significant role in protecting the interests of the design professional and the project owner during and after project completion. The ownership or licensing of the drawings provision typically outlines who owns the drawings and specifications, who can use the documents, and how the documents can be used during and after the project.
Project owners and developers should understand that payment for design services does not automatically transfer ownership or an exclusive right to use the professional design. Under U.S. copyright law, the default rule is that the design professional retains ownership of the instruments of service absent a contractual provision transferring ownership or a license. See 17 U.S.C. § 101, et seq. The Architectural Works Copyright Protection Act provides that copyright protection applies to “pictorial, graphic and sculptural works” and includes “architectural works.” 17 U.S.C. § 102. A design professional may only transfer copyright ownership in writing. 17 U.S.C. § 204(a).
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Abby Dvorkin, Snell & WilmerMs. Dvorkin may be contacted at
advorkin@swlaw.com
Surety Liability Is Coextensive with Its Bond Principal
April 14, 2026 —
David Adelstein - Florida Construction Legal UpdatesA recent Miller act payment bond case, U.S. f/u/b/o Whitetail General Constructors v. Northcon, Inc., 2026 WL 46671 (D.Mont. 2026), contains a short noteworthy discussion as to a surety’s liability being coextensive with that of its bond principal. If you are bonded, or you are pursuing a bond, you need to appreciate this, which is why this is a noteworthy discussion:
A “surety’s liability on a Miller Act bond must be at least coextensive with the obligations imposed by the Act if the bond is to have its intended effect.” “Therefore, ‘the liability of a surety and its principal on a Miller Act payment bond is coextensive with the contractual liability of the principal only to the extent that it is consistent with the rights and obligations created under the Miller Act.’” In other words, “[w]here a subcontract’s terms are consistent with the Miller Act’s provisions, the surety’s liability on the Miller Act bond is coextensive with the contractual liability of its princip[al].”
“The liability of a surety under the Miller Act is controlled by federal law, rather than state contract law[.]” The court may, however, “look to state law when interpreting contractual provisions” in a Miller Act case.
“[T]he measure of recovery under the Miller Act is generally determined by the terms of the subcontract [or underlying contract].”
Northcon, supra, at *4-5 (internal citations omitted).
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
PSA: Be Sure to Document (Even When Time is Short)
April 14, 2026 —
Christopher G. Hill - Construction Law MusingsWritten
change orders are a big deal. Almost all construction contracts (at least
the well drafted ones) require written contracts. Written change orders are even important enough that Virginia law
requires these provisions in residential construction contracts.
Why are they so important? Because they are a “mini-contract” of sorts. They
set the expectations, price, time, and work to be performed; work that was not included in the original price or scope for the project. Without this in writing, there will be no record of what the parties agreed to do. Does this sound familiar? Sound like its own contract? It should.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Las Vegas Partner Jeffrey Saab and Team Leader D. Ryan Efros Secure a $0.00 Settlement on a Multimillion-Dollar Construction Defect Case!
April 14, 2026 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPPartner
Jeffrey Saab and Team Leader
D. Ryan Efros’ client was a construction supervisor on a palatial mansion. The homeowners claimed millions of dollars in damages and asserted the client was a general contractor (GC) and so responsible for the alleged defects. Jeff and Ryan took more than 15 depositions, reinforcing their trial strategy theme: that the client was not a GC, but Plaintiffs were. They secured significant concessions from Plaintiffs, pressed Plaintiffs’ own negligent construction choices, and made the risk of trying the case intolerable. On the eve of trial, Plaintiffs backed down, settling out Jeff and Ryan’s client for $0.00.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
50 State Matrices | 2026 Edition
March 03, 2026 —
Gordon Rees Scully MansukhaniGRSM’s 50 State Legal Matrices provide a comprehensive, state-by-state snapshot of statutory law across all 50 U.S. states. Spanning critical areas such as indemnification, contractor licensing, labor standards, statute of limitations, and more, this resource enables businesses and counsel to quickly identify key legal requirements and variations across jurisdictions.
Designed as a practical starting point rather than definitive legal advice, the Matrices help multi-state operators and attorneys navigate the complex patchwork of laws that can vary dramatically from one state to another.
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Gordon Rees Scully Mansukhani
The “Pay When Paid” Clause in California Construction—Strategies as the Battle Continues
August 03, 2026 —
William L. Porter - Porter Law GroupIt is well known in California Construction circles that the “Pay If Paid” clause is illegal in this state. There is a great distinction, though, between this clause and a similar clause, known as a “Pay When Paid” clause. A pay if paid clause allows a contractor to tell a subcontractor that if the contractor is unpaid for the subcontractor’s work, then the contractor has no legal obligation to pay the subcontractor, ever. For a great variety of reasons, the California Supreme Court, in the case of Wm. R. Clarke Corp v. Safeco Ins. Co. of America (1997) 15 Cal.4th 882, declared this type of clause illegal in California Construction.
Although the pay if paid clause is illegal in California, the pay when paid clause is still perfectly legal and is found in many subcontracts that contractors issue to their subcontractors. The pay when paid clause allows a contractor to delay paying its subcontractors until the dispute between the contractor and the property owner over payment has been resolved and the contractor is paid by the property owner. Although seemingly reasonable (since it merely delays payment until the contractor is paid by the owner, thereby providing a funding source to pay subcontractors), significant problems still arise.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Four Payne & Fears Attorneys Named 2026 Southern California Super Lawyers Rising Stars
March 17, 2026 —
Payne & FearsWe congratulate our four Payne & Fears attorneys who have been named 2026 Southern California Super Lawyers Rising Stars. This recognition highlights the next generation of legal talent, honoring attorneys who have made a strong impact in their practice areas early in their careers.
Employment & Labor
Taylor Brown
Bree Oswald
Employment Litigation: Defense
Tyler Runge
Business Litigation
Brian Shaw Read the full story...Reprinted courtesy of
Payne & Fears
Turnover Traps for Community Associations: Investigate First, Release Claims Later
April 14, 2026 —
Nicholas B. Vargo - Ball Janik LLPTurnover of a community association from developer control to owner control is a uniquely vulnerable moment. Developers are increasingly presenting Florida condominium and homeowners’ associations with “standard” settlement or release agreements at turnover, often being framed as routine steps to finalize the transition of control. In reality, these agreements can have sweeping consequences, including the release of construction-defect claims before the association has conducted any meaningful independent evaluation.
The developer has years of project knowledge and access to plans, subcontractors, and internal records. The newly elected board is just beginning to organize, obtain documents, and understand the property’s condition. Many defects, especially those involving roofing, waterproofing, windows, or structural components, are latent and not yet visible. Signing a release at this stage means the association is making a binding decision under conditions of uncertainty, without full information, to release all future potential claims.
Over the last few years, there has been a rise in reports of developers offering a packaged deal: they agree to complete certain repairs, often minor punch-list or cosmetic items, and to “forgive” an alleged financial deficit (often around $50,000) supposedly owed by the association from the developer-control period. In exchange, the association is asked to sign a broad release covering all claims, including known and unknown construction defects. To a new HOA board that received their community with limited operating and reserve funds, they are left with a difficult decision to either accept the developer’s offer or assess their owners to pay this alleged debt.
These agreements are occasionally presented through community management companies, which may describe them as “standard” or "routine.” Whether due to misunderstanding or influence from the developer, management companies can unintentionally reinforce the idea that signing is expected. Any recommendation provided to HOAs about whether to sign these releases could open community management to liability down the road. The best practice for both associations and community managers is to refer any agreements to be reviewed by general counsel for the association.
The following two case studies illustrate the real-world consequences:
Case Study One: A newly transitioned board relies on its management company to negotiate with the developer-builder to resolve irrigation issues, pond concerns, and signage deficiencies, along with forgiving an asserted financial shortfall. In exchange, the board signs a broad release covering all claims, including latent defects.
Within a year, several punch-list items remain incomplete, and more serious issues arise. When the association demands completion, the developer delays, prompting the association to seek advice on how to enforce the settlement agreement. The association hires counsel to hold the developer responsible for both the previously agreed-upon items and newly identified construction defects. However, when the association brings claims against the developer, the developer points to the release of all potential construction defects in the community. Thus, the only remaining remedy is limited to enforcement of the specific punch-list terms. The community, still relatively new, has no viable claims against the developer-builder for the construction defects. With warranties expired and the release, the association must fund repairs through special assessments, despite defects that would otherwise have been actionable.
Case Study Two: A community is presented with a similar agreement as above. The management company encourages execution, suggesting it is standard and even telling the board to “name your price.” The developer also pressures the newly elected board to sign.
Instead of signing, the board consults with their attorney. Counsel advises the board not to sign the release and recommends further investigation. Engineers are retained and identify early indicators of broader issues, including stucco cracking, water intrusion, and irrigation deficiencies. Based on this information, the association declines to sign the release. Subsequent evaluation reveals potentially significant construction-defect claims, allowing the community to pursue recovery that would have been lost under the proposed agreement.
These scenarios underscore a fundamental point: signing a release at turnover is not an administrative formality—it is a major legal decision. Board members act in a fiduciary capacity on behalf of their community, and their decisions can bind all current and future owners. At turnover, an association’s right is to investigate and pursue claims. Preserving that right until a full and independent evaluation is completed is not adversarial—it is responsible governance.
Accordingly, associations should retain independent evaluations of the property and consult qualified legal counsel before signing any “standard” agreements, especially ones involving a release of future claims.
Nicholas B. Vargo is a partner in Ball Janik LLP’s Construction Practice Group. He may be reached at nvargo@balljanik.com.
