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Taft Construction Practice Group

Creating the foundation for a solid future


Taft has been helping clients build their futures for more than 125 years. We are business attorneys who see the big picture. Our Construction Team has broad experience in the construction industry and can provide a solid legal foundation for the work you do. We can assist you with every aspect of your project, from start to finish, whether you are an owner, developer, design professional, contractor or supplier. Our construction team is as multifaceted as you are.

Let us provide the legal framework for all stages of your project so that you can concentrate on what you do best - building your future.

Withholding Payment - Risking Liability for a Lien Claimant's Attorney's Fees in Illinois

Elizabeth J. Boddy  

(312) 836-4084


While many construction projects are managed smoothly from start to finish, some present their fair share of complications. Disputes can sometimes arise, especially in scenarios where unanticipated events cause costs to escalate, and funding can become inadequate before construction is complete. An owner may know that money is owed to at least some contractors or subcontractors but may nevertheless elect to withhold payment until all disputes are resolved. Might as well wait until the dust settles, right?

Not so fast. In Illinois, an owner who withholds payment from a contractor or subcontractor without justification runs the risk of paying the claimant's attorney's fees in addition to the amount due on contract. 


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EPA and Army Corps Issue Proposed Rule Defining the Scope of Waters Protected Under the Clean Water Act

E. Chase Dressman  

(513) 357-9406


On April 21, 2014, the United States Environmental Protection Agency ("EPA") and U.S. Army Corps of Engineers ("Army Corps") issued a joint proposed rule designed to clarify which water bodies are subject to Clean Water Act ("CWA") jurisdiction. The proposed rule states that it is aimed at assisting the regulated community and saving agency resources by limiting the need for fact-intensive determinations regarding the jurisdictional scope of water bodies. Comments on the proposed rule are due no later than Oct. 20, 2014.

The scope of CWA jurisdiction has been a heavily contested and litigated issue in recent years. At the center of this ongoing dispute has been the murky meaning of the term "waters of the United States" under the implementing regulations for the CWA. The U.S. Supreme Court weighed in on the issue in several well-publicized cases, ultimately requiring the EPA and Army Corps to evaluate the issue on a case-specific basis. The need to resort frequently to a fact-intensive analysis on whether certain waters are subject to CWA jurisdiction has led to great uncertainty among the regulated community and a drain on agency resources spent litigating the issue. The new proposed rule is supposed to provide clarity as to whether individual water bodies are jurisdictional (and thus subject to permitting requirements for discharges) or not jurisdictional (and thus not subject to permitting requirements for discharges).    


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Quorum Call - NLRB Pursues Pro-Union Agenda 


Kerry P. Hastings  

(513) 357-9380

Now that the National Labor Relations Board ("NLRB") has a quorum (meaning that at least three of the five NLRB members have been properly appointed) and the Senate changed the filibuster rules, the board is free to pursue the pro-union agenda that was thwarted by the NLRB's quorum problems. Among many other initiatives, the NLRB is likely to take two significant actions in the near future: re-enacting new election rules and revisiting Register Guard.

Re-enact New Election Rules

The NLRB is expected to adopt some or all of the new election rules it originally proposed and partially enacted in 2011. A federal court struck down these rules due to the NLRB's lack of a quorum, but in February 2014, the NLRB re-proposed the rules and held a hearing on them in April. The NLRB is virtually certain to re-enact some or all of these rules this year.

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Construction Innovations Yield Tax Benefits 

Padric Kelly O'Brien

(317) 713-3493

An Internal Revenue Service determination released earlier this year may be valuable to both real estate developers and manufacturers of certain types of drywall systems. We'll explain both the ruling and how it may affect these businesses.

When tangible property such as a commercial building is placed in service, the owner is entitled to a depreciation expense that offsets sales, rents and other income. The tax laws provide a broad range of recovery periods and methods, from immediate deduction for part of the investment in equipment to straight-line recovery over 39 years for non-residential realty. Most commercial developers seek through "cost segregation" planning or studies to classify property used in construction as something other than non-residential realty in order to accelerate depreciation expense off of a project. The net present value of accelerated tax benefits can often be quite significant and is often considered in the project budget and ROI planning stages.

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June 2014 Issue
Withholding Payment - Risking Liability for a Lien Claimant's Attorney's Fees in Illinois
EPA and Army Corps Issue Proposed Rule Defining the Scope of Waters Protected Under the Clean Water Act
Quorum Call - NLRB Pursues Pro-Union Agenda
Construction Innovations Yield Tax Benefits

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