The floodwaters from the aftermath of Hurricane Harvey have receded, and now it’s time to focus on the overwhelming task of getting back to normal, that includes protecting your property values. Below are helpful steps to do just that.

Step 1 – Notify Mortgage and Insurance Company and FEMA: If you have flood insurance, file a claim with the insurance company and schedule an appointment with the insurance adjuster. If you did not have insurance, file a claim with FEMA and schedule an appointment with a FEMA adjuster. This adjuster appointment should occur prior to conducting any demolition or rebuilding; however, with the extent of the damage to the Houston area, this may not be feasible since it may take weeks to schedule such appointment. In that case, document the damage, as discussed below. Filing a flood insurance claim will not prevent you from filing a FEMA claim; however, FEMA may require you to file an insurance claim prior to filing with FEMA.

Step 2: Document the Damage: Now that all claims have been filed, owners need to take steps to prevent further damage, such as patching or tarping damaged roofs and boarding up broken windows. Separate salvageable items and store in a safe dry place. Prior to any demolition or rebuilding, take photos and videos of the damage, including any standing water remaining in the home, visible floodwater level lines, structural damage and all discarded items. Ensure those photos and videos include a date/time stamp. Make a list of all damaged items, including the value, date of purchase and receipts, if possible, and going forward, be sure to keep copies of all receipts, work orders, contractor agreements, and all other items relating to clean up and rebuilding.

Step 3: Air Out, Tear Out, Clean Out and Dry Out(i): Once documentation has been completed and stored in a safe place, begin airing by opening windows, all doors, including closet doors, and all cabinets. Next, the property owner should tear out and remove all damaged furniture, carpet, flooring, sheetrock, cabinets and other porous items and furniture. Unlike Step 4 below, a property owner may do this on their own or hire a contractor to perform the work. No additional certification is required to “muck and gut” your property, and mucking out your property will not prevent you from obtaining a mold certification, discussed below. If your property is located in the City of Houston, report your debris to the Houston Solid Waste Management Department (“HSWMD”) by dialing 311 or report at Houston311.org. The HSWMD requests that all debris be placed on the sidewalk or edge of the property before the curb, and to be separated into six piles for pick up: (1) vegetative debris, (2) construction and demolition debris, (3) appliances, (4) electronics, (5) household hazardous waste, and (6) normal household trash(ii). Before any rebuilding starts, you or your contractor should follow all local ordinances and obtain all required permits prior to construction. It is important to note that the Texas Real Estate Commission’s Seller’s Disclosure Notice (“Disclosure Notice”) specifically asks the seller if they are “aware of any room additions, structural modifications, or other alterations or repairs made without necessary permits or not in compliance with building codes in effect at that time”(iii), so it is important to ensure that all ordinances are followed and permits obtained. The Department maintains a list of licensed mold remediation contractors on their website(iv).

Step 4: Mold Assessment and Remediation(v) : A property owner may treat their own property for mold; however, it is strongly recommended that you hire a licensed mold and remediation company. A mold remediation company will evaluate your property to determine if mold is present and at what levels, and if mold is present the company will remediate and remove the mold. Unlike Step 3, your insurance and/or mortgage company may require you to obtain a Certificate of Mold Damage Remediation (“CMDR”), which verifies that any mold located on the property was removed correctly. The Texas Mold Assessment and Remediation Rules (“TMARR”) require that all mold remediation companies/contractors have a license issued by the Texas Department of Health Services (the “Department”); however, the Department has waived such requirements for mold remediation and assessment companies for the duration of the disaster declaration in Harris and surrounding counties. Suspending the licensing requirement will allow those experienced remediation companies that are not licensed in Texas to provide necessary services. In lieu of licensure, unlicensed companies and persons who wish to conduct work in the Houston area may register with the Department. An unlicensed mold remediation or assessment company can provide mold services and assessment and can verify whether mold is present; however, unlicensed remediation or consultants cannot issue a CMDR. The Department pointed out that those licensed in Texas should inform property owners that using the waiver process may cause issues with insurance claims, so it is recommended to hire a licensed mold remediation or consultant. The Department maintains a list of licensed mold remediation contractors on their website(vi).

Step 5: Seller’s Disclosure: Should you decide to sell your home now or in the future, it is important to note that Texas homeowners are required to disclose previous flood damage and whether the property is located in a 100 year flood plain on the Disclosure Notice(vii). This form specifically asks the seller if they are:

– “aware of any previous flooding” and
– “the property is located in 100 Year Flood Plain.”

The above steps are things that you as an owner can do to protect the value of your property. Unfortunately, many Houston area homes will see low property values for the next few years. The drop in value will depend on the location of the property and the extent of damage caused by the flooding. For now, we are all in the same boat, still riding out the effects of our dear friend Harvey.


(i) “FEMA – Initial Restoration for Flooding Buildings” http://www.floods.org/PDF/FEMA_InitialRestorationFloodBldg.pdf
(ii) See http://www.houstontx.gov/solidwaste/debris_08302017.html
(iii) Texas Property Code § 5.008 and a copy of the disclosure form is available at https://www.trec.texas.gov/sites/default/files/pdf-forms/OP-H_0.pdf.
(iv) See https://vo.ras.dshs.state.tx.us/datamart/login.do;jsessionid=39CFC0D4B8F83F005338D87285E544C5.i-03a38ec2506c5b8dd
(v) Texas Department of State Health Services, “Emergency Guidance on Mold Remediation Under the Governor’s Disaster Declaration” and “Q & A on Mold Remediation Related to Hurricane Harvey”; https://www.dshs.texas.gov/mold/
(vi) See https://vo.ras.dshs.state.tx.us/datamart/login.do;jsessionid=39CFC0D4B8F83F005338D87285E544C5.i-03a38ec2506c5b8dd
(vii) Texas Property Code § 5.008 and a copy of the disclosure form is available at https://www.trec.texas.gov/sites/default/files/pdf-forms/OP-H_0.pdf.

On September 28, 2017, the Department of Homeland Security (DHS) announced that it approved a 10-day waiver of the Jones Act with respect to the movement of merchandise between points in the United States and Puerto Rico. The waiver will be in effect for 10 days, commencing immediately, and will apply to all products being shipped to Puerto Rico. The waiver applies to covered merchandise laded on board a vessel within the 10-day period of the waiver and delivered by October 18, 2017. Carriers or shippers who conduct transportation pursuant to the waiver are recommended by DHS to provide notice of the vessel, dates of embarkation and disembarkation, type and quantity of cargo, and port of embarkation to JonesActWaiverRequest@cbp.dhs.gov.

The “Jones Act” is the common name used to refer to the set of federal statutes and regulations that, among other things, prohibit the transportation of merchandise between points in the United States by foreign-flag vessels. The Jones Act limits such transportation to U.S.-flag vessels built in the United States, owned and operated by U.S. citizens, and predominantly crewed by U.S. citizens. The Jones Act may be waived, though, if certain conditions are met by statute, including when “necessary in the interest of national defense.”

The DHS press release for the current waiver for Puerto Rico states that the waiver was granted following a determination by the Secretary of Defense that a waiver is in the interest of national defense. Under DHS’ current waiver for Puerto Rico, foreign-flag vessels will be allowed to bring aid to Puerto Rico from U.S. ports.

Earlier this month, DHS approved a separate waiver of the Jones Act following Hurricane Irma, but DHS’ prior waiver was limited to the movement of refined petroleum products, as well specific points of origin within the continental United States. The current waiver by DHS is broader with respect to the permitted movement of merchandise in that, according to DHS’ press release, the current waiver applies to all products being shipped to Puerto Rico, and not just refined petroleum products, and the current waiver is not limited to certain points of origin in the United States.

Related Professional

Remember that these legal principles may change and vary widely in their application to specific factual circumstances. You should consult with counsel about your individual circumstances. For further information regarding these issues, contact:

R. Scott Jenkins
Partner, Jones Walker LLP
201 St. Charles Ave
New Orleans, LA 70170-5100
504.582.8346 tel
sjenkins@joneswalker.com

 

On August 25, 2017, and September 10, 2017, President Trump declared major disasters in Texas and Florida due to Hurricanes Harvey and Irma (the “Hurricanes”). Following the declarations, the Internal Revenue Service (“IRS”), the Department of Labor (“DOL”) and the Pension Benefit Guaranty Corporation (“PBGC”) issued relief for affected individuals and entities. The IRS is postponing certain tax filings and payment deadlines for taxpayers who reside or work in the disaster area. The relief also provides qualifying individuals with expanded access to their retirement plan assets to alleviate hardships caused by the Hurricanes. Additional IRS guidance allows donation of employer-paid leave to charitable organizations aiding victims of the Hurricanes.

The DOL is providing additional relief to employers and plan fiduciaries, in the form of deadline leniency and relaxation of fiduciary requirements for benefit plans that have compliance lapses resulting from the Hurricanes. Finally, the PBGC is waiving certain penalties and extending certain filing deadlines. Below is a summary of the relief provided by the IRS, DOL, and PBGC. Additional relief is sure to follow for victims of Hurricane Maria in Puerto Rico and the U.S. Virgin Islands.
Continue Reading Federal Agencies Provide Benefit Plan Relief to Victims of Hurricanes Harvey and Irma

The below article was written by two of our Texas-based attorneys, Ann L. Latimer and Daniel J. Baldwin, and was published on September 21st in Texas Lawyer.

Come Hell or High Water

By Ann L. Latimer and Daniel J. Baldwin
September 21, 2017  

On Friday, Aug. 25, 2017, Houston and surrounding communities were preparing for Hurricane Harvey as city officials warned the storm would be more of a rain event than wind event.

On Saturday morning, many property owners woke to find that they had survived the storm with little to no damage; however, their situation would change within the next 24 to 48 hours. Harvey dumped record breaking amounts of rainfall, more than 51 inches in some areas, and by some reports, over 9 trillion gallons of water overall, enough to fill the Great Salt Lake twice over. Where does all that water go? Harris County has the Addicks and Barker reservoirs that help prevent flooding in 22 main channels and bayous within Houston, and are monitored by the Harris County Flood Control District.

On Sunday, the United States Army Corps of Engineers, the HCFCD and local officials began controlled releases from the reservoirs to protect the integrity of the reservoirs from catastrophic damage that could occur from an uncontrolled release, and to preserve storage capacity for future rains. In an attempt to reduce flood levels, the USACE and the HCFCD raised the release rates from 2,000 cubic feet per second to 13,000 cfs, which caused extensive flooding in the channels and bayous. Neighborhoods that were not flooded by the initial storm were now inundated with several feet of water.

A similar event took place north of Houston at the Lake Conroe dam. Lake Conroe rose to a record level of 205.88 feet above mean sea level. The San Jacinto River Authority (conducted a record setting controlled release rate of 79,100 cfs, eclipsing the 1994 record of 33,360 cfs, to protect the integrity of the dam and prevent extensive damage to lakefront properties; however, the release caused extensive flooding along the San Jacinto River and Spring Creek areas.

Flooded out property owners are outraged with the USACE, SJRA, HCFCD, and local officials, and many are asking who is responsible for the damage and what causes of action do I have?

Federal Tort Claims Act and Texas Tort Claims Act

Historically, under the doctrine of sovereign immunity, you could not “sue the king”. The FTCA and TTCA, however, provide limited waivers of immunity when property is damaged, by the wrongful or negligent act of a government employee acting in the scope of their duties. Neither statute likely provides affected Harris County homeowners with relief.

The FTCA exempts claims based upon the performance of, or failure to perform, a discretionary function, which the USACE would argue encompasses the controlled releases. Likewise, the TTCA specifically excludes equipment used in connection with operation of floodgates or water release equipment.

Inverse Condemnation

The Federal and Texas constitutions protect private property rights and prohibit the taking of a person’s property for a public use without adequate compensation. In other words, when the government physically takes possession, even temporarily, of a property for some public purpose, it has a duty to compensate the property owner. A taking occurs when a government action directly and immediately interferes with the use and enjoyment of a piece of property.

Some affected homeowners have already filed lawsuits against the USACE, HCFCD and SJRA, among others, contending that the controlled releases amounted to an impermissible taking of their homes. Plaintiffs are seeking recovery for property loss, repair costs, diminution in value, lost income and any consequential damages. To recover on an inverse condemnation claim, these homeowners must establish that the governmental agencies made an intentional decision to perform the controlled releases for a public use, resulting in a taking of their property.

The success of these lawsuits and others that will follow likely depends upon the knowledge and intent of the government, i.e., whether the agencies intended to cause the flooding, as well as the length of time each property was flooded, the character of the land at issue and whether the water released initially flowed directly onto the homeowner’s property or a river, bayou or other man-made channel.

Conclusion

For homeowners that have experienced continuous flooding, a buyout program may be the best option. Harris County official Ed Emmett has reportedly requested $800 million from the federal government to buyout properties that cannot be repaired or where a buyout is more cost effective. The HCFCD recently launched its home buyout program, and residents are asked to submit a Notice of Voluntary Interest to the HCFCD. As of Wednesday, Sept. 13, 2017, approximately 1,850 property owners have taken advantage of such program, which is well above the norm of 12 a month. A buyout still has pitfalls, such as limited funding, delays in processing applications, receiving approval from federal, state and local officials and issuing final payments. The typical buyout process takes between two and two and a half years.

Additional lawsuits may be filed against federal, state and local agencies over the next few months and years, but we all need to remember that this was an extreme weather event, setting record amounts of rainfall. The concern was that if there had not been controlled releases, then the reservoirs and Lake Conroe dam could have failed, bringing even more devastation. This was a situation where you are “dammed” if you do and “dammed” if you don’t … pun intended.

Ann L. Latimer is Special Counsel in Jones Walker’s Real Estate Practice Group and practices from the firm’s Woodlands office. Daniel J. Baldwin is an associate in Jones Walker’s Business & Commercial Litigation Practice Group and practices in the firm’s Houston office.

Reprinted with permission from the September 21, 2017 edition of Texas Lawyer© 2017 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com

Please find below a press release that was issued yesterday by The Harris County Office of Homeland Security & Emergency Management.

September 21, 2017 – (Houston, Texas) – The Harris County Office of Homeland Security & Emergency Management invites residents affected by Hurricane Harvey to a recovery fair this weekend.

  • WHAT: Hurricane Harvey Recovery Fair
  • WHEN: Saturday, September 23 and Sunday, September 24
    9 a.m. – 4 p.m.
  • WHERE: Houston Community College – Northeast
    Art Hub Gallery
    555 Community College Drive
    Houston, Texas 77013

The Harvey Recovery Fair will provide important recovery information about available disaster assistance from both governmental and non-profit organizations. Representatives from the Federal Emergency Management Agency (FEMA) and the Small Business Administration (SBA) will be available to answer questions and help residents apply for disaster assistance.

This recovery event is targeting residents living in northeast and east Houston, East Aldine, Jacinto City, Galena Park, Cloverleaf and the Channelview areas.

Harris County Commissioner Precinct Two will be providing free shuttle service to the event from the following locations:

Flukinger Community Center
16003 Lorenzo Street
Channelview, TX 77530

Northeast Community Center
10918 1/2 Bentley Street
Houston, TX 77093

Alvin D. Baggett Community Center
1302 Keene Street
Galena Park, TX 77547

Morning Trip: 9 a.m. pick-up and 12 p.m. return
Afternoon Trip: 12 p.m. pick-up and 4 p.m. return

Participating Organizations:

  • Harris County Office of Homeland Security & Emergency Management
  • Harris County Office of Commissioner Jack Morman
  • Harris County Community Services Department
  • Harris County Engineering Department
  • Harris County Flood Control District
  • Harris County Public Library
  • Harris County Public Health Services
  • City of Houston 311
  • City of Houston Housing and Community Development
  • City of Houston Department of Neighborhoods
  • City of Houston Permitting Center
  • Office of U.S. Representative Sheila Jackson Lee
  • Federal Emergency Management Agency (FEMA)
  • Small Business Administration (SBA)
  • American Red Cross
  • Texas Gulf Coast Voluntary Organizations Active in Disasters (VOAD)
  • United Way of Greater Houston
  • Houston Community College

###

Law360 recently featured Jones Walker lawyers in two articles discussing the legal implications that Texas businesses will face following the widespread damage caused by Hurricane Harvey. The publication turned to Houston-based partner Krystal Pfluger Scott and Baton Rouge-based partner Davis B. “Pepper” Allgood to share their knowledge.

Scott was quoted in a Law360 article, “5 Biggest Client Questions After Hurricane Harvey.” She discusses how Jones Walker is providing legal guidance to clients who have concerns about employee benefits, commercial leasing disputes, insurance claims, contractual obligations, and property damage. She explains that many of the firm’s clients in the greater Houston area are small and midsized businesses that face the dilemma of taking care of their workers while keeping their business operations sound. Scott notes that “The generosity is so consistent in our clients and how they are managing that question.”

Clients are also seeking advice about how Harvey will affect leases after extensive property damage and business closures. Scott advises that when these disputes arise, it is best to look at specific leasing situations separately as every agreement is different. And, on the transactional side of property damage, Scott said that Jones Walker lawyers are drafting construction contracts to protect clients against potential breaches by contractors. Lawyers are also advising clients on flood protection measures.

Scott remains optimistic, saying, “People love this city and they want to be in business here. It’s just a question of how we do that without suffering the same kind of loss again.”

Allgood, Baton Rouge-based Construction team partner, was quoted in a Law360 article, “Disaster Response Has Unique Hazards for Contractors.” Allgood discusses key legal and regulatory issues faced by contractors participating in the recovery from Hurricane Harvey.

Rebuilding efforts will require billions of dollars, which presents significant opportunities for contractors. The challenge in short-term emergency situations is a potential conflict between state and federal laws and requirements. Allgood advises contractors to seek legal counsel “…to make sure that the rules are going to be followed, particularly if there’s a lot of money involved.” He recommends this because many entities will need to turn to the federal government for assistance in paying contractors, which is not always guaranteed and can result in disputes. Allgood cautions against relying upon local governments, even amid time pressures of the rebuilding efforts.

In response to the impact of Hurricanes Harvey and Irma, certain counties in Texas and Florida have been declared as major disaster areas. [For a complete list of declared counties and information on hurricane related federal tax relief see IRS Provides Tax Filing and Payment Relief to Hurricane Victims.]  As a result, numerous states have enacted delayed filing and payment periods for individuals and businesses located in these major disaster areas.  In order to help track these developments, the Jones Walker team has compiled and summarized the provided relief of participating states.  Our team will continue to monitor for further federal and state tax related disaster relief announcements and update this post accordingly.

Alabama

  • Alabama Department of Revenue Press Releases: August 29, August 31, September 12, 2017
  • Alabama taxpayers residing in Texas or Florida counties designated as disaster areas by the federal government have until Jan. 31, 2018, to file tax returns due on or after Sept. 1 (Sept. 15 for Hurricane Irma victims), 2017, and before Jan. 31, 2018.
  • Penalty relief will be provided during the extension period.
  • Taxpayers seeking this tax relief should write “Texas Flood 2017” or “Irma Relief – 2017” in red ink on any state paper return/report which relies on this filing extension relief.
  • The relief applies to individual income tax, corporate income tax, pass-through entities, sales and use tax, withholding tax, and business excise tax.
  • IRP/IFTA requirements for vehicles are temporarily suspended for vehicles engaged in disaster relief efforts.

Arkansas

California

  • CDTFA News Release NR 9-17 (September 1, 2017)
  • Business owners and tax and fee payers affected by Hurricane Harvey may request extensions to file their returns, ask for relief from penalties and/or interest for some taxes and fees, and request copies of records lost due to storm damage.
  • Deadlines are extended for filings that were delayed by disruptions affecting the U.S. Postal Service and private mail and freight companies.
  • Businesses located in the Gulf Coast area that have been impacted by Hurricane Harvey, and who, as a result, cannot meet their filing and payment deadlines, may be eligible for relief.

Continue Reading State Tax Relief for Hurricane Victims

As a result of the devastation wrought by Hurricanes Harvey and Irma, the following counties have been declared as major disaster areas, all of which are entitled to federal tax filing and payment relief:

In Texas: Aransas, Austin, Bastrop, Bee, Brazoria, Calhoun, Chambers, Colorado, DeWitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Hardin, Harris, Jackson, Jasper, Jefferson, Karnes, Kleberg, Lavaca, Lee, Liberty, Matagorda, Montgomery, Newton, Nueces, Orange, Polk, Refugio, Sabine, San Jacinto, San Patricio, Tyler, Victoria, Walker, Waller and Wharton Counties.

In Florida: Broward, Charlotte, Clay, Collier, Duval, Flagler, Hillsborough, Lee, Manatee, Miami-Dade, Monroe, Palm Beach, Pinellas, Putnam, Sarasota and St. Johns Counties.

Taxpayers whose principal residence or a business’ principal place of business was located in one of the counties declared as a major disaster area are entitled to certain federal tax relief for the 2016 tax year. This federal tax relief includes: (a) the suspension of certain deadlines to file tax returns; (b) the suspension of certain deadlines to pay taxes; and (c) the ability to claim casualty losses incurred as a result of Hurricanes Harvey and Irma.

Continue Reading IRS Provides Tax Filing and Payment Relief to Hurricane Victims

Maritime contracts for services generally include clauses for performance, demurrage, deviation, termination, and suspension. Performance may be affected by an Act of God or Force Majeure clause and event. A typical Force Majeure clause reads as follows:

Except for the duty to make payments hereunder when due, and the indemnification provisions under this Agreement, neither Company nor Contractor shall be responsible to the other for any delay, damage or failure caused by or occasioned by a Force Majeure Event as used in this Agreement. “Force Majeure Event” includes: acts of God, action of the elements, warlike action, insurrection, revolution or civil strife, piracy, civil war or hostile action, strikes, differences with workers, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction in the premises or of any other group, organization or informal association (whether or not formally recognized as a government); inability to procure material, equipment or necessary labor in the open market acute and unusual labor or material or equipment shortages, or any other causes (except financial) beyond the control of either Party. Delays due to the above causes, or any of them, shall not be deemed to be a breach of or failure to perform under this Agreement. Continue Reading Hurricanes and Act of God Defenses

Environmental issues may arise relating to shut-downs, start-ups, and upsets, as well as spills or releases from operating facilities in Texas relating to Harvey and the massive flooding that resulted. Many operating permits and authorizations require notification to TCEQ and/or EPA for force majeure events, such as floods and storms. Verbal notifications followed by written notifications are typically required. Operating entities should carefully review their permits and authorizations for applicable notification provisions and procedures. TCEQ also provides outreach and technical guidance to facilities reporting spills, including from sanitary sewers and other waste water facilities in flood-impacted areas.

As a response to Harvey, TCEQ has requested and Governor Gregg Abbott has signed on August 28, 2017, a disaster declaration temporarily suspending certain specified rules and regulations that could prevent, hinder or delay entities regulated by TCEQ in relation to Harvey’s disaster response operations. See: https://www.tceq.texas.gov/assets/public/response/hurricanes/Governor-response-to-suspension-of-rules.pdf and https://www.tceq.texas.gov/assets/public/response/hurricanes/suspension-of-tceq-rules-8.28.17.pdf.

EPA and TCEQ are notifying the public of potential hazards associated with flood waters, including bacteria and other disease agents. See: https://response.epa.gov/sites/12353/files/EPA%20Press%20Release%20EPA-TCEQ%20Statement%20on%20Water%20Quality%2008-31-2017%20.pdf.

Other useful information relating to environmental issues as well as guidance for response and cleanup following Harvey may be found on TCEQ’s Hurricane Response web page at: https://www.tceq.texas.gov/response/hurricanes.