Fil 12345

4.
08 Duty to Provide Necessary Items within Owner’s Control
The law holds that the owner has a duty to provide items and approvals outside the contractor’s
control that are necessary for the contractor to reasonably and timely perform its work. This
includes obtaining required permits, easements, and regulatory approvals. The contractor claims
that that owner breached the contract by failing to [insert description of the owner’s alleged failure,
such as failure to obtain necessary permit]. To establish this claim, the contractor must prove all of
the following:
(1) The contractor could not reasonably or timely perform its work without [insert name for item,
e.g., a building permit]. (2) The owner knew or reasonably should have known that [a building
permit] was necessary for the contractor to reasonably and timely perform the work. (3) The owner
had the ability to obtain [a building permit]. (4) The contractor could not [e.g., obtain a permit]
without the owner’s assistance. (5) The owner failed to [obtain a permit] in a timely manner. (6) The
owner’s failure impacted the contractor’s work.
Comment An excellent discussion of this implied duty and corresponding cases is available in The
Twelve Deadly Sins: An Owner’s Guide to Avoiding Liability for Implied Obligations during the
Construction of a Project, Steven B. Lesser & Daniel L. Wallach, 28 Constr. Law. 15 (Winter 2008).
“Generally, the owner has an implied obligation to furnish whatever easements, permits, or other
government approvals are reasonably required to enable construction to proceed.” Id. (citing COAC
Inc. v. Kennedy Eng’rs, 136 Cal. Rptr. 890 (Ct. App. 1977) (water district owed implied contractual
duty to contractor building water treatment plant project to timely secure environmental impact
report and all necessary permits); Nat Harrison Assocs. Inc. v. Gulf
States Utils. Co., 491 F.2d 578 (5th Cir. 1974) (owner liable to contractor for delay in securing right-
of-way for transmission line project)). Such terms are necessarily implied from the very nature of the
contract,
and the failure to comply with them constitutes a breach of contract by the owner. See Howard
Contracting Inc. v. G.A. MacDonald Constr. Co., 71 Cal. App. 4th 38, 50 (1998); Felix Contracting
Corp. v. Oakridge Land & Prop. Corp., 106 A.D.2d 488 (1984) (holding owner liable for delay in
obtaining timely governmental approvals); see also Cal. Constr. L. Manual § 1:80 (6th ed. 2005)
(citing cases). Similarly, if the owner is delayed in securing appropriate access for performance of the
work, the date for completion is to be extended accordingly. See, e.g., Maurice L. Bein Inc. v. Hous.
Auth. of City of L.A., 321 P.2d 753 (Cal. Ct. App. 1958); D.A. Parrish & Sons v. Cnty. Sanitation Dist.
No. 4 of Santa Clara Cnty., 174 Cal. App. 2d 406, 410 (Dist. Ct. App. 1959); McGuire & Hester v. City
of S.F., 113 Cal. App. 2d 186, 187, 188 (Dist. Ct. App. 1952); see also 10 Cal. Real Est. § 27:36 (3d ed.)
(citing cases). For example, in Lapp-Gifford Co. v. Muscoy Water Co., 134 P. 989 (Cal. 1913), where
the contractor completed a job late because it could not obtain an easement over a railroad right-of-
way, the law implied a covenant on the part of the owner that it either possessed or would procure
the right-of-way. As a result, the owner was precluded from recovering any delay damages against
the contractor. “In general, where plans, specifications and conditions of contract do not otherwise
provide, there is an implied covenant that the owner of the project is required to furnish whatever
easements, permits or other documentation are reasonably required for the construction to proceed
in an orderly manner.” COAC Inc. v. Kennedy Eng’rs, 136 Cal. Rptr. 890 (Ct. App. 1977); see also S.
Stein, Construction L. (MB) ¶ 18.02 (1994); 3 Bruner & O’Connor on Construction Law § 9:99.
4.09 Warranty of Commercial Availability of Materials, Products, and Equipment

When an owner specifies a single source for construction [materials, products, or equipment], the
law holds that the contractor is not responsible if

Fil 12345

Uploaded by

Copyright:

Available Formats

Fil 12345

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Fil 12345

Uploaded by

Copyright:

Available Formats

4.

08 Duty to Provide Necessary Items within Owner’s Control

4.09 Warranty of Commercial Availability of Materials, Products, and Equipment

You might also like