Under Washington law, prime contractors perform construction for consumers, while speculative builders construct on property they own. The differentiation between these classifications is important because prime contractors are subject to Washington’s business and occupation (“B&O”) tax and retail sales tax, while speculative builders are not. In Lanzce G. Douglass, Inc. v. Department of
Trying Large Construction Disputes CLE—Seattle
On October 6, 2023, I will be on the panel “Trying Large Construction Disputes,” to be presented during The Seminar Group’s 30th Annual Washington Construction Law conference on October 5 and 6, 2023, in Seattle or online. Intended for anyone who practices construction law, desires to practice construction law, or is confronted with matters involving
New Washington Law Applies Limitations to Retainage on Private Construction Projects
In the construction industry, “retainage”—the practice of withholding by an owner or contractor a portion of the funds that are due to a contractor or subcontractor for a construction project until its completion—is a term frequently negotiated in contracts for private construction projects as a means to mitigate the risk of default since the monies
The Importance of Third-party Beneficiary Clauses in Contracts
For anyone building a dream vacation home, renovating an existing commercial structure, or developing a multimillion-dollar, mixed-use project, construction contract terms are of utmost importance. One often overlooked clause covers the contractual “third-party beneficiary” (TBP)—a person or entity who, though not a party to the contract, stands to benefit from the contract’s performance. Interpretations of
Construction Contract Termination Provisions: Recent Washington Case Examines Parties’ Rights
The importance of carefully drafting, and following, a construction contract’s termination provisions was made clear for project owners and contractors by a recent Washington Supreme Court decision, Conway Construction Co. v. City of Puyallup. The city contracted with Conway to build a major roadway, but when the city lost confidence in Conway’s work, it issued
Mitigation of Risk in the Age of COVID-19: Ten Ways Owners Can Protect Themselves Against Lien Claims in Washington
Among the many effects on the U.S. economy of the COVID-19 pandemic, construction projects that started before it began but were halted in its aftermath may be slow to resume or be abandoned altogether thanks to funding issues. Contractors, subcontractors, and suppliers feel immense pressure to protect and preserve their rights to payment for work
COVID-19 Alert – Governor Jay Inslee Extends Stay at Home, Stay Healthy Proclamation Through May 4, 2020 and Delays Implementation of New State Building Code
On March 23, 2020, Governor Jay Inslee issued the Stay Home, Stay Healthy Proclamation (20‑25) in response to the COVID-19 pandemic. Originally, the Proclamation was to be in effect through April 8, 2020. Despite Washington’s aggressive efforts to flatten the curve, on April 2, 2020, Governor Inslee announced his decision to extend the Proclamation through
COVID-19 Update: Washington Governor Issues Construction Guidance Memorandum
On March 25, 2020, Washington Governor Jay Inslee issued a memorandum that provided members of the construction industry with additional guidance regarding the Stay Home, Stay Healthy Proclamation (20-25) issued on March 23, 2020 in response to the COVID-19 pandemic. The Proclamation raised a number of questions in the industry, including whether all residential construction was deemed an essential service. The Proclamation seemed to indicate in a parenthetical that “housing construction” was permitted but then went on to limit “residential construction” to “emergency repairs and projects that ensure structural integrity.” Because of the resulting confusion, some residential projects began shutting down, while many did not, with the trades on those projects expecting to continue with work.
Yesterday’s memorandum confirms that there is no blanket treatment of residential construction under the Proclamation, and not all residential construction is an essential service. Just as with commercial construction, for a residential construction project to proceed, it must fit into one or more of the following:
- Construction related to essential activities as described in the order;
- To further a public purpose related to a public entity or governmental function or facility, including but not limited to publicly financed low-income housing; or
- To prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.
An Owner’s Guide to Accessibility Claims in Washington
When owners engage architects and accessibility consultants to design their projects, they naturally expect good design, but they must also be sure the design provides all users with the practical ability to use and enjoy the end result. Civil rights acts such as the ADA and Fair Housing Act were enacted to provide certain protected
Advance Contractual Lien Releases in Washington – An Enforceable Shield or Unintended Liability?
As the construction boom continues in Washington (and especially in Seattle), owners and developers look for ways to mitigate risk on projects. Risk mitigation is often accomplished through negotiated terms and conditions of the parties’ contractual agreements. In my latest Daily Journal of Commerce article, I explore the validity of advance contractual lien releases and