The winter storm that brought snow, freezing temperatures, power outages, frozen water lines and bursting pipes to Texas, shutting down most construction projects in the process, forced many contractors and owners to take a look that their contracts to determine who is responsible for the ensuing delays and the costs to repair any damage. Continue Reading Excusable Delay and Builder’s Risk: A Reminder to Weatherproof Your Contracts
The 179d Tax Deduction
My law partner, David Gair, and I recently wrote a paper regarding the energy-efficient commercial building tax deduction (IRC § 179D). The upshot is that the Consolidated Appropriations Act of 2021 recently made this deduction permanent. As discussed in much more detail in the paper, 179D allows for a tax deduction of up to $1.80 per square foot for the design of energy efficient government buildings.
From the paper:
For many years, Congress has held this deduction somewhat hostage by extending it on a year-by-year basis and not permitting construction businesses to properly plan. Now we have some certainty that this deduction will be around for years to come. The potential benefit is very substantial and can allow the economic incentives to work for businesses and governments with very tight budgets. Careful study can yield great results. Beware, however, that the compliance rules are onerous and properly accredited professionals must be employed. Due diligence on the front end will yield great results and avoid IRS entanglements on the back end.
Texas Laws Emergency Contractors Must Know
Co-author: Trevor Lawhorn
As evidenced by the unprecedented arctic weather last week and the resulting fallout, emergency construction services are essential. Freezing temperatures, hurricanes, tornadoes and other natural disasters lead to a high demand for remediation and reconstruction services. Contractors are often best positioned to provide the necessary emergency construction services to rebuild businesses, residences and communities. Emergency contractors must always be mindful of certain laws that impact how they conduct business after a disaster. Understandably, Texas has implemented a number of laws to protect disaster victims against predatory or otherwise unsavory business practices. Here are a few essential Texas laws that both owners and contractors must consider when contracting for emergency construction services. Continue Reading Texas Laws Emergency Contractors Must Know
Can the Trust Fund Act be Waived?
The general prohibition against waiving lien rights under Chapter 53 of the Texas Property Code has been written about extensively, and is well known through the industry. However, the Construction Trust Fund Act (Ch. 162 of the Texas Property Code) does not contain any such prohibition. From the Act itself, it is not clear whether construction trust fund rights can be waived or not. Less than two years ago, the Texas Fourteenth Court of Appeals considered this issue, among several others, in Mesa Southern CWS Acquisition, LP v. Deep Energy Exploration Partners, LLC. In that case, the Court considered the following provision: Continue Reading Can the Trust Fund Act be Waived?
Mechanic’s Liens For Design Professionals: A Powerful Payment Collection Tool
Co-author: Tim Fandrey
In these unprecedented times, every bit of revenue is critical to the continued operation of nearly every business operating within the construction industry. Fortunately, there are a myriad of remedies to aide collection efforts. Perhaps the most commonly discussed remedy is the mechanic’s lien provided by Chapter 53 of the Texas Property Code Chapter. Continue Reading Mechanic’s Liens For Design Professionals: A Powerful Payment Collection Tool
Lien Inception
When owners file bankruptcy or projects otherwise go south, lien priority often comes to the forefront. The idea is relatively simple. Priority is how courts determine which creditors get paid first. This often pits lenders against M&M lien claimants. For lenders, their liens typically arise when they record their deeds of trust. However, for M&M lien claimants, the Texas Property Code has very specific rules that must be followed. Continue Reading Lien Inception
COVID-19 – Legal Impact
COVID-19 is now interrupting and, in some instances, cancelling contracts across the country. While the situation is highly fluid, these business disruptions appear likely to continue and perhaps even worsen in the immediate future. This will significantly affect and perhaps threaten businesses people have worked had to establish. And it will of course impact employees and their jobs. Business leaders will have to make tough decisions in the coming weeks and months. Many of these decisions will touch on important legal issues. Below are a few legal hot topics addressed by my colleagues at Gray Reed in the past few days: Continue Reading COVID-19 – Legal Impact
Obscure But Important Surety and Guarantee Rules
Texas surety law contains obscure procedural rules that can have outsized consequences. Chapter 43 of the Civil Practice and Remedies Code is an important example. Continue Reading Obscure But Important Surety and Guarantee Rules
What’s Ahead for the Construction Industry in the 86th Texas Legislative Session
For 140 days, starting on Jan. 8, 2019, the 150 members of the Texas House of Representatives and 31 members of the Texas Senate, under the leadership of Governor Greg Abbott, will gather for the 86th Texas Legislative Session. As is often said, when the Texas Legislature is in session – your life, liberty and property are at stake – as new laws, rules, regulations, taxes and fees will be proposed and will receive substantive debate and deliberation before Texas legislators ultimately vote on your behalf.
Most legislators agree that the main issues driving the agenda for the session are public education (including school finance, school safety, workforce development and teacher pay) and property tax relief. Additionally, there is no question that the legislature will spend considerable time on what is sure to be a complicated and challenging state budget cycle. With school finance, healthcare, infrastructure funding and Hurricane Harvey recovery looming large on the horizon, this legislative session will present unique fiscal challenges – and also great opportunities – to ensure Texas remains strong and prosperous.
In terms of “construction” legislation, general contractors, subcontractors, suppliers, owners, developers, lenders and lawyers all have reason to pay particularly close attention as several important issues have seemed to gain the attention of Texas Legislators. To name a few: Continue Reading What’s Ahead for the Construction Industry in the 86th Texas Legislative Session
Series LLCs in the Construction Industry: Increasingly Popular Fortresses to Protect Contractor’s Assets
Originally published in Build Houston magazine.
Co-author: Catherine Chlebowski
The business of construction is a day to day adventure fraught with peril and liabilities dangerous enough to put many construction firms out of business. Given that reality, it is imperative that contractors properly structure the legal entities that provide the fortresses to protect their assets. While most are familiar with the limited liability company (LLC) and limited partnership (LP) set ups, many have no familiarity with series limited liability companies (Series LLC). Continue Reading Series LLCs in the Construction Industry: Increasingly Popular Fortresses to Protect Contractor’s Assets