Are You Going to Get Paid? Ask a Construction Lawyer We aren’t the biggest construction law firm in the DFW area, but it is funny how in our practice we get to see some industry trends developing firsthand and probably even before most analysts do. I’ve always told clients to keep up with their receivables…
How to Bond Around a Mechanic’s Lien I received an email the other day asking if there was a standard form for bonding around a mechanic’s lien, so I thought it would be a good topic to write out how you actually go about bonding around a lien. I think the first step is looking…
Homeowner’s Mistakes As a construction lawyer who has not only practiced construction law for over 20 years, but also has been in the homeowner’s position and have made my own mistakes, there is a very specific trend of top mistakes that are being repeated by homeowners (and even contractors) time and time again. I wanted…
McGregor ActEarlier this year the Texas Supreme court ruled in favor of a supply company and the ruling has very good implications for subcontractors and suppliers. Here is an excerpt of the opinion: Chapter 2253 of the Texas Government Code, historically called the McGregor Act, requires a prime contractor on a public-work contract to execute…
Warning for Fraudulent Lien Laws Due to the complex nature of mechanic’s lien laws, it is highly discouraged to attempt to perfect a mechanic’s lien without the guidance of a licensed attorney specializing in Texas lien law. This includes the third-party mechanic’s lien companies that contractors will often use. Under Texas fraudulent lien law (Tex.…
Alternative to a Mechanic’s Lien – UCC Filing In this article, I want to discuss ways to perfect your security interests in fixtures and how these UCC filings help you gain priority over other potential claimants (such as banks or other lien holders). “Fixture” means goods that have become so related to particular real…
Liening Homesteaded Properties in Texas Today I would like to discuss how liens placed on homesteaded properties in Texas have different requirements than liens placed on non-homesteaded properties. Since Texas is a state that really believes in a person’s rights to preserve their homestead, there are some additional requirements that often trap unwary contractors. While…
Keeping Afloat in a Slow Economy It is no secret that our economy is suffering badly. Even the basics simply cost too much, and everyone has to cut back. As a result, your business is suffering. So, how will your business survive when so many are closing their doors? Some simple, practical changes can make…
Retainage One recurring problem we’ve been seeing in our practice over the last 6 months is subcontractors having problems collecting their retainage; or as others call it, money retention. I’ve written before about the legal timing requirements for notices and perfecting a claim, today I want to spend some time discussing some of the practical…
Foreclosure of Your Mechanic’s Lien So you filed a lien on a property and now you want to know what else you might do to get paid. And the answer is it depends (I’m sure you’ve never heard that answer from an attorney!). There are a lot of factors that go into the different alternatives…
Warranty Deed or Quitclaim Deed – what’s the difference and why should you care? Every now and then, someone comes to my office needing a “Deed.” Usually, they have heard the term Quitclaim deed and specifically ask for that. But, many people (including some attorneys, I’m chagrin to admit), do not understand the difference between…
Elements In order to have a fraudulent lien, you must meet four elements: Knowledge that the document/record is fraudulent; Intent that the fraudulent document be given the same legal effect as a valid document; Intent to cause financial injury, physical injury or mental anguish; and Intent to defraud. Case Law There are a few cases…
What is an eviction suit? In Texas, a suit to evict a tenant is known as a suit for forcible detainer. If you have a tenant in a property you own who is not willing to vacate the premises voluntarily, the only legal means of removing such tenant is through an eviction proceeding, in a…
So last time, we answered some of the most common questions we hear regarding the change order process. This week, I want to concentrate on various cases that have come down in Texas that relate to construction change orders and specifically discuss how these cases affect you the contractor. Ok, I didn’t get a written…
I want to take some time to discuss with you something that comes up daily within the lawsuits we litigate for our contractors. Change Orders. I know, it’s a dirty word. However, through our practice we have commonly dealt with the issues that arise from the Change Orders and believe that we have developed a…
Has a disgruntled customer posted defamatory statements about your business? It is possible that your business has become a victim of business disparagement. Texas law provides for a claim against a person who publishes false statements about the character of your business. The law requires that this person (or customer) must have acted with malice…
Every state has its own unique set of laws, statutes, codes, and case law, but the general rules of contract interpretation are largely consistent and generally apply to construction contracts. The following, while not an all-inclusive list, are some of the most common rules that any non-lawyer in the construction industry in Texas should be…
Most sub-contracts have a provision called something like “man the Job” provisions. This is a provision that protects the contractor if a subcontractor is having unusual delays or even not showing up on the job. It normally protects the contractor by giving proof of their cause for a termination of a subcontract and possible contractual…
Texas contractors may encounter situations where they face default termination allegations. Dealing with such circumstances can be challenging, but with the right knowledge and strategies, contractors can navigate these situations. The following are some tips for Texas contractors to help address default termination allegations and protect their interests. Understand the Contractual Obligations: When facing default…
When entering into a construction project in Texas, it is crucial to ensure that your interests are protected and that you fully understand the terms and conditions of the contract. Review of construction contracts by a qualified, experienced attorney is a necessary step to safeguard your rights and mitigate potential risks. This article highlights the…
The Spearin Doctrine is a significant legal principle that has a significant impact on construction projects in Texas. Due to the complexity of many construction specifications and can be changed over time due to different worksite conditions. Nevertheless, the plans prepared by a professional should at least provide specific instructions and accurate detail to accomplish…
Construction liens are vital tools for contractors and suppliers in Texas to secure payment for their services and materials. However, it is important to be aware of potential errors that can render a construction lien invalid. Some of the most common mistakes that can invalidate a construction lien in Texas and how to avoid these…
One of the most frustrating things can be learning that a lien has been filed on your home by a contractor, particularly one which is invalid or unenforceable. Your first thought is one of bewilderment as to why it was filed, maybe you paid the invoices (or didn’t) for the work performed. This article is…
Today, I wanted to share some important information with you regarding your business and protecting yourself personally against your business’s liabilities. This article relates to all type of businesses not just those in the construction industry. Because we represent businesses, a great deal of our work involves ensuring our clients have maximum personal liability and asset…
Continuing and hoping to add to the last blog’s advice as to how to protect yourself when the market starts showing signs of distress, I really want to talk about waivers today. Waivers are such a commonplace event in the industry, I think it is easy to forget just how powerful they can be. In…
Many of you were likely around for the 2008 “crash.” I could have told you in early 2007 to hold on, it was coming. One thing that most people do not realize is that construction lawyers really have their ear to the ground and can very quickly know when the tides start turning. In 2007,…
Pretty much the time of year for a hail storm and roof replacements to begin. There’s so many horrible stories about contractors on the news, from your friends, on Facebook; there’s even completely dedicated Facebook sites directed at warning consumers of sham contractors. So how can you really know that you’ve got a good contractor?…
KMDA is pleased to announce the recent addition of Russell Weisbard, RA, as the newest attorney to KMDA
This picture was taken from a foundation case our firm was involved in. As you can see, without a doubt, the most irritating aspects for a builder and homeowner, and one which causes so much litigation, is concrete. It comes in many forms, depending upon where you live, but here are a few common issues:…
I wish to bring to your attention a problem that has festered in Texas for a long time but has recently become a very serious issue and growing rapidly. Many people or entities posing as general contractors are taking countless unsuspecting homeowners and would-be homeowners for their life savings. Every day, self-proclaimed contractors approach consumers…
Materials costs are skyrocketing! The obvious resulting dilemma with a fixed price contract is if the contractor must absorb these increased costs and cannot change the total contract price, the project could become unprofitable. We have fielded many recent requests concerning what homeowners can do when they are a party to a fixed price (“Turnkey”)…
The best way to avoid payment issues is to negotiate the payment terms and conditions of the contract, as well as the remedies of the parties from the beginning. But of course, unfortunately, there are times a general contractor (“GC”) is slow to pay or fails to pay its subcontractors. If you are a subcontractor…
Construction Costs Have Soared OSB is now running a minimum of $100 a sheet. Studs are $10 each. Metal is responding with similar gains for framing and piping. All systems of both residential and commercial construction are going skyward with no relief in sight. Appraisals are not in line with cost to build. There is…
Let’s face it – no client enjoys receiving their attorney’s bill at the end of the month. We as attorneys love to joke by saying clients hate us until they need us – then they hate us again after the bill arrives. There is hope. You can lower your attorney’s fees bills by one simple…
Whether you are a homeowner or a contractor, Chapter 27 of the Texas Property Code, also known as the Residential Construction Liability Act (“RCLA”), applies to you if there is a dispute regarding alleged construction defects at your home or the home you built/performed construction work. Does not sound like something good, to have to…
Limited Liability Company: A limited liability company (LLC) is not a partnership or a corporation. An LLC is a distinct type of entity that has the powers of both a corporation and a partnership. LLCs are very common these days and we definitely set up more LLCs than any other business structure. The owners of…
I’m sure all of your experienced some type of distress or property damage from the recent winter storm. I actually had a roof leak develop in my dining room and multiple outside faucets sporting “ice beards” of frozen water. I couldn’t find my homeowner’s insurance policy, so I just called the insurance company and started…
Corporations. Most people are familiar with big corporations that make products or provide services we all regularly use, such as Ford and American Airlines. However, the corporate business structure is also available to individuals. In Texas, a corporation is created by filing a Certificate of Formation with the Texas Secretary of State and paying the…
There are certain areas of construction for both developers and subcontractors that we know asattorneys are consistent problem areas. Today, I am going to focus on the most sensitive area whichcauses probably the most grief for everyone involved – paying and getting paid. On the owner/developer side, we see issues of subcontractors not performing to…
The week of February 14, 2021 will not soon be forgotten and many of usare still dealing with issues that arose from frozen pipes. It is easy to understandand expect that plumbers or wannabe plumbers are well aware of these issues.While the need to act quickly is very important, we still need to actcarefully. Plumbing…
This week we are lucky to have my own personal CPA, Frank Sikich, CPA, CHAE, of Flower Mound, Texas, to give us an update on the new changes to the PPP Loans, including how to obtain forgiveness and what you can spend the money on: At the end of 2020, Congress passed, and President Trump…
As mentioned in Part 1, two other typical business structures in Texas are the “general partnership” and “limited partnership.” A general partnership is created when two or more persons associate to carry on a business for profit. There is no law in Texas mandating that the “partners” sign a written partnership agreement and there are…
KMDA is very pleased to announce the addition of Carlo Caravetta as the newest senior attorney to our firm Release Date: “For Immediate Publication” Lewisville, TX Kelly M. Davis & Associates, LLC is pleased to announce a new hire as Senior Counsel in its Lewisville, Texas office –Carlo E. Caravetta – to fill a new…
The biggest fear I have as an attorney representing businesses is their lack of protecting their trade secrets. Most business owners do not realize the protection provided under the law in most states for those items included in the category of “trade secrets.” For instance, do you realize that your client lists, methods in performing…
You have decided to start a new business and realize that no matter what your business does, creates or builds, you of course have no desire to be exposed to personal liability if something does not go as planned. Unfortunately, there is no 100% guaranteed “iron clad” (not a legal term, but we hear it…
We have seen numerous reports that homeowners are active on home improvement and remodeling projects during the Covid-19 pandemic. North Texas seems to be one of the especially active regions for remodel work. This is of course great news for both remodelers and homeowners. However, given the ongoing concerns about Covid-19 and the fact that…