Tuesday Tip | Tax incentives for Green projects

green escalatorInterested in green building but skeptical about how it will increase your costs?  Before ruling out the concept, don’t forget to consider the tax incentives for green building.  Between the Business Energy Investment Tax Credit, federal cash grants for energy projects, North Carolina incentives for renewable energy property, and NC’s Green Building Incentive, there are ample opportunities to make “going green” a more appealing choice on your next building project.

For a look at some of the tax incentives available, check out Getting Green for Going Green- Tax incentives for energy-efficient projects.   [Update- link no longer working as of 11/22/2010]

You can also explore the database of North Carolina incentives for renewables and efficiency.  For projects outside of North Carolina, search the national database for tax incentives for going green.

If you are a homeowner interested in energy efficiency, you too may be able to get in on the green movement.  The Home Star legislation being considered by Congress, if it passes, will provide tax credits for making energy improvements to your house.


Photo “the green ascent” by vsz via Flickr via Attribution-Noncommercial-Share Alike License.



The Architect’s and Engineer’s “Standard of Care” (Law note)

drawing architectural plans

Architects and engineers are required to meet the appropriate standard of care for their work on a construction project.   Such a simple phrase is actually a very loaded statement.  What, exactly, is the “standard of care” that the design professional is required to meet?  This is one of the “terms of art” that lawyers love and everyone else tends to hate.

Basically, the “standard of care” is a shorthand description that states the designer owes a duty to perform reasonably well on the project.  How is “reasonably well” defined?  It is not perfection.  It is, however, the showing of “reasonable care” and performing the “level of skill and diligence those in engaged in the same profession would ordinarily exercise under similar circumstances.”  Again, what?  If you are an architect practicing in, for example, Raleigh, you will be presumed to:

1.  possess the required degree of learning, skills, and experience that is ordinarily possessed by similarly situated professionals in the community (that is, perform as well as other architects practicing in the Raleigh area);

2. use reasonable and ordinary care and diligence in the exercise of your skill to accomplish your professional tasks; and

3. use your best good professional judgment in performing your professional tasks.

Notice that nowhere did I say that the architect’s plans had to be perfect.  However, the plans do need to meet a “typical” standard.  They must meet the applicable Codes.  They must generally be sound.  But they do not have to be perfect.  (Question: Is there ever a perfect set of plans?).

Courts in North Carolina have spent a lot of time, and a lot of ink, discussing the deceptively simple concept of “standard of care,” but essentially this is how it is defined.  If you want to read caselaw discussing the standard, a good case is RCDI Const. Inc. v. Spaceplan/Architecture, Planning, & Interiors, PA., 148 F. Supp. 2d 607 (W.D.N.C. 2001).

Note for Contractors & Subcontractors

If you are not a licensed professional, are you off the hook?  No.  But your duties fall under the “implied duty of workmanship“.  Essentially, you have a duty to make sure your work is sufficiently free from defects such that it meets the requirements of the Contract documents.


Photo Drawing up the plans (Doors & Windows) by Sailing “Footprints: Real to Reel” (Ronn ashore) via Flickr and made available via an Attribution-Noncommercial-Share Alike 2.0 license.


Tuesday Tip| NC Municipal Codes- online

municipal ordinance- don't feed pigeons

“Don’t” by Danielle Scott via Flickr


“Don’t” by Danielle Scott via Flickr/CC license.

Second Primary Election Tomorrow in NC

If you live in North Carolina, please review this post to see if you have a second primary election tomorrow and, if so, please remember to vote.  Polls are open from 6:30 a.m. to 7:30 p.m.

The following second-primary races will be held:




  • US Senate–Elaine Marshall v. Cal Cunningham



  • NC State Senate District 21— Eric L. Mansfield v. Lula Crenshaw





  • US House of Representatives District 8– Harold Johnson v. Tim D’Annunzio



  • US House of Representatives District 12– Greg Dority v. Scott Cumbie



  • US House of Represeventatives District 13– William (Bill) Randall v. Bernie Reeves

There are also at least a few municipal/local run-off elections.  For a sample ballot for your voting district, head to the NC Board of Elections website.



Implied Warranties on Construction Projects

warrantyA contractor client asked me to explain to him what it meant when someone told him that he had given implied warranties to an owner.  This is an excellent question.

Implied warranties are warranties that the law presumes you have given to the other party.  Even if you never make any written warranty or guaranty, North Carolina courts will often find that you are still liable for certain warranties unless  you explicitly disclaim them.

The warranties that are generally implied in construction contracts include:


  • Warranty of Merchantability


  • Warranty of Fitness for a Particular Purpose


  • Warranty of Habitability (residential construction only)


  • Warranty of Plans and Specifications


  • Warranty of Workmanship


  • Warranty to not delay or hinder any other parties on the Project



What do these warranties mean?  Essentially, they all mean the same thing:  that your product or labor is at least acceptable.  It may not be perfect—but it meets certain minimum expectations.

Disclaimable Warranties

Warranty of Merchantability—Under the Uniform Commercial Code, this warranty states that the merchant or supplier of a  product delivered to the buyer warrant that the product is able to be used as intended.

Warranty of Fitness for a Particular Purpose—This warranty, also under the Uniform Commercial Code, states that a product will be able to be used for a specific purpose which the buyer has told you about.  It is usually less of an issue that merchantability—however, if a buyer tells you of an unusual need that he is expects the product you supply to him will meet, it can come into play.

Both of these warranties can be disclaimed—that is, you can assert that you are making no such warranties in your written contract or purchase order form.  Certain requirements apply to make a disclaimer valid, so check with legal counsel.

Nondisclaimable Warranties

The remaining warranties—Habitability, Plans and Specifications, Workmanship, and Not to Hinder or Delay—are warranties that, in general, cannot be disclaimed.

Warranty of Habitability– The contractor for new residential construction owes a duty to build a house (and related fixtures) such that it can be lived in for normal residential purposes.  This duty extends to both the original purchaser and subsequent purchasers, so long as statute of limitation and repose are met.

Warranty of Plans and Specifications–The owner impliedly warrants to the contractor that the plans and specifications provided to the contractor are adequate.  This is also called the “Spearin doctrine.”

Warranty of Workmanship—Every contractor impliedly warrants that his construction will be built in a workmanlike manner and sufficiently free of major defects.  This implied warranty is sometimes made express in written contracts—such as in AIA A201 3.5.1.

Warranty to Not Delay or Hinder—This warranty is owed by each contractor to his subcontractors, prime contractors to one another, and the owner to the contractor.

If a warranty is breached, the other party has a claim for breach of the implied warranty at issue.

  Question Mark Have a question about implied warranties?  Shoot me an email at mbrumback @rl-law dot com.


Photo “Warranted/Day 70” by Aaron Goselin via Flikr made available via an Attribution-Noncommercial-Share Alike 3.0 License.

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