Construction Law - Burton Law Firm based in Houston, TX

The Burton Law Firm, P.C. has over 20 years of experience in this area of the law. If you have questions about this subject please call us at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com or David Torok at david@burton-lawfirm.com.

Construction Law

What is construction law?
It involves the formation of agreements and disputes between the builder and the property or building owner.
Can construction law vary from state to state?
Yes.
What are the most common types of litigation for construction law?
Litigation may involve contracts or defects, but a large percentage of construction litigation involves the filing or defense of mechanic/materialman liens.
What are the main categories involving such liens?
These liens fall into three main categories: private jobs controlled by the Texas Property Code; public jobs controlled by the McGregor Act and federal jobs which are controlled by the Miller Act.
Who is entitled to a lien?
Generally, persons who furnish labor or material for the construction or repair of a house, building or improvements to privately owned real property in Texas are entitled to perfect a mechanic’s lien.
Is the enforceability of liens and related to the classification of the claimant as an owner, original contractor or sub-contractor/materialman?
Yes.
Must the labor be used in the direct prosecution of the work for a lien to apply?
Yes.
What is meant by materials?
It means materials, machinery, fixtures and tools which are consumed in the construction or which are ordered and delivered for incorporation or consumption.
If as a contractor I am unable to prove that the materials in question ever made it to the project site, am I still entitled to secure a lien?
Yes, so long as the materials were delivered to the owner for the specific project.
Do I have to prove that the materials I furnished were actually incorporated into the work?
No, so long as you can prove delivery to the owner or contractor for the project.
What does improvement include?
Abutting sidewalks and streets and utilities in or on those sidewalks and streets; clearing, grubbing, draining, or fencing of land; wells, cisterns, tanks, reservoirs, or artificial lakes or pools made for supplying or storing water; pumps, siphons, and windmills or other machinery or apparatuses used for raising water for stock, domestic use, or irrigation; and planting orchard trees, grubbing out orchards and replacing trees, and pruning of orchard trees.
What is commercial property?
Income producing property; as distinguished from residential property.
Who is an original contractor?
A person contracting with an owner either directly or through the owner's agent. Also known as the general or prime contractor, this contractor is responsible for paying the subcontractors.
What is a residence?
A single-family house, duplex, triplex, or quadruplex or a unit in a multiunit structure used for residential purposes that is: owned by one or more adult persons; and used or intended to be used as a dwelling by one of the owners.
What is a residential construction contract?
A contract between an owner and a contractor in which the contractor agrees to construct or repair the owner's residence, including improvements appurtenant to the residence.
What is a residential construction project?
A project for the construction or repair of a new or existing residence, including improvements appurtenant to the residence, as provided by a residential construction contract.
What is retainage?
In general, an amount representing part of a contract payment that is not required to be paid to the claimant within the month following the month in which labor is performed, material is furnished, or specially fabricated material is delivered.
What is mean by specially fabricated material?
Material fabricated for use as a component of the construction or repair so as to be reasonably unsuitable for use elsewhere.
Who is a subcontractor?
A person who has furnished labor or materials to fulfill an obligation to an original contractor or to a subcontractor to perform all or part of the work required by an original contract.
What is a fixture?
Personal property which has become permanently attached or annexed to the real property and the permanent improvements thereon.
Are fixtures subject to a mechanic’s lien?
Yes.
Where can I get permits?
Your community's building inspection department, office of planning and zoning, or department of permits will have a listing of the necessary construction law permits, construction contract law regulations, and inspections related to building and zoning codes for new construction or remodeling.
Do you have to get different permits for constructing homes and office units?
It depends on your jurisdiction. However, typically the permit requirements and the inspections are generally more stringent for commercial applications.
What clauses should I include in the contract to protect my legal rights if I am looking to do some renovations with my home?
You should insert a clause allowing you to withhold payment if the renovations are not done completely or correctly. You should also have other clauses, including one stating that you may withhold payment if a subcontractor or materials supplier files a lien or claim against you.
Is a contractor bound by his written estimate of a job?
As a general rule, a contractor is not bound by an estimate; written or otherwise. Unless it says that it is a binding contract, it is not.
Can I ask a contractor for references?
Yes.
What should I ask of former customers?
Ask former customers if the estimates the contractor gave before the job matched with the final bill.
What do I look for in the construction contract to protect me from delays?
If you are a homeowner, you will want to provide a penalty, such as the right to withhold progress payments, if the builder does not complete the job by a certain date. If you own land zoned for commercial building use, then you would want the right to withhold the final payment until the building department issues a certificate of occupancy.
How can I protect myself in the event the builder fails to do the job right?
You can put language in the construction contract providing for the right to withhold payments or take an offset, or deduction, against the contract sum if the builder quits or fails to build to code.
What if the subcontractor threatens to sue me or file a lien on my house?
You might have a claim against the general contractor. It is likely that the reason the subcontractor is threatening you with legal action is that the subcontractor has not been paid by the general contractor.
If as a builder I am worried that there might be something which could unexpectedly increase my costs and ruin my profit what do I do?
The best way to pass this cost onto the homeowner is to put language in the contract specifying that any expenses from unforeseen events during the construction shall be passed along to the homeowner.
Should I have insurance on the building?
The building owner, whether residential or commercial, should always carry fire and liability insurance on the building, even though the construction has not completed.
How do I know the contractor is licensed and bonded?
Before signing any contract, check with your local contractor licensing board. It should tell you whether the contractor’s license is valid, whether a bond is in place, and perhaps whether there have been any claims filed against the contractor.
How can I enforce my mechanic’s lien?
By way of a judgment of a court of competent jurisdiction foreclosing the lien and ordering the sale of the property subject to the lien.

Unless otherwise indicated, attorneys listed in this site are not certified by the Texas Board of Legal Specialization. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.