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In the construction space, all eyes in early 2018 were on Congress, amid plans to legislate for investment in the country’s infrastructure worth around $1.7tn over the next ten years, as detailed in the President’s State of the Union address. Following years of cuts, and ageing bridges, roads, rail systems and water pipelines, it has been estimated that $3.6tn is needed to renew the country’s infrastructure. Whilst uncertainty remains about the means to address the funding shortfall, the demand and appetite for infrastructure is evident, with increases in public construction projects throughout the country. Law firms such as Peckar & Abramson, P.C. and Pillsbury Winthrop Shaw Pittman LLP have been working with state authorities, as complex design-build and public-private partnership (PPP or P3) infrastructure models become increasingly popular. It is hoped that new models, including PPP, can partially address the difficulty in financing new infrastructure projects by maximizing value for constituents and shifting some of the incidental risks of construction defects and delays to the private sector.

Closely linked to the ageing infrastructure, and driven by the growing US population, is the need for affordable housing. This permeates across the country, as New York, Houston and the West Coast are seeing developers build mixed-use, multistory housing developments, many with thousands of residential units built in with commercial, retail and green spaces. These developments echo the demand for urban living that is affordable and that focuses on helping communities to thrive. In order to meet these social demands, many states have imposed affordable housing options on developers.

The $20bn Hudson Yards development remains the largest real estate construction project in the US and is paving the way for mixed-use, high-rise developments, with several residential buildings combined with business, retail and entertainment venues. Social infrastructure is also a major growth area - especially healthcare - and as a result of an increasing and ageing population numerous medical and hospital facilities are being built, particularly in the north eastern and southern states, with many funded through the PPP model.

As a number of large public infrastructure projects come to their conclusion, it is anticipated that heavy civil infrastructure lawsuits are likely. Firms are increasingly participating in front-end negotiations seeking to provide for alternative dispute resolution mechanisms within construction contracts, with mediation becoming increasingly popular. Nevertheless, the market for construction litigation remains strong, with a growing number of claims partly attributable to previously low profit margins resulting in precarious projects being entered into and lawsuits arising. Texas, and particularly Houston, remains the center for energy disputes, and with the drop in oil prices many Texas-based firms are working with energy owners on high-value disputes.

Despite increasing political and economic uncertainty at the beginning of 2017, the thriving real estate market remained highly active throughout the year, with lawyers commenting on the strong pipeline of work across all sectors. Financing work in particular has been on the rise, with both borrowers and lenders seeking to enter transactions for property sales, acquisitions and major development projects. Portfolio deals are increasingly prevalent, with single-asset transactions becoming less so, and firms noted a significant number of portfolio deals in the hotels and hospitality space.

Key regions of focus for real estate firms include New York, which is the location of numerous large-scale office, residential, retail and mixed-use development projects; this includes Hudson Yards, which has produced an abundance of work for law firms across the board. California, Texas and Florida are also active markets in the development context. Sector activity remains strong across the board, however lawyers note that the retail sector has slowed noticeably within the last year given the rise in online shopping platforms such as Amazon and eBay, though work remains active in the form of redevelopment projects involving large shopping malls.

The US real estate market has seen renewed foreign investor interest after a period of uncertainty - though inbound work from Chinese investors has become less prevalent in anticipation of impending tax reforms. Nonetheless, domestic investment activity remains at an all-time high despite the sharp rise in property asset prices.

Land use and zoning is a highly regional practice with rules and regulations differing from state to state, and therefore requires highly specialized lawyers that are cognizant of the political environment and very familiar with the local context. The legal work focuses on land use approvals, entitlements and zoning matters for real estate and infrastructure projects, with the most prestigious being sports stadiums, major hospitals, university campuses, as well as corporate headquarters and tech campuses. There has been a noticeable increase in mixed-use projects in recent years; the combination of residential and commercial buildings, often with an entertainment component, leads to the creation of new quarters and eases the need for living space in densely populated major cities. On the contentious side, the workload includes appealing negative decisions of administrative authorities and defending projects against oppositions launched by neighboring landowners and environmentalist groups.

Despite being a volatile year for global financial markets, the US REIT industry still managed to generate total returns of around 9.3% during 2017, with certain technology-related asset classes (particularly the data center, cell tower and industrial sectors) performing well. In addition, the investor consensus is that REITs remain undervalued compared to traditional stocks, particularly with the latter maintaining their upward trend; this perceived value should combine with the 6.5% increase in US house prices during 2017 to push US REITs to more robust activity levels in 2018.

Already, opportunistic institutional investors are piling in to snap up cheap assets in the most underperforming real estate sectors, with the challenging retail environment ensuring that REITs linked to shopping malls are currently being seen as the best long-term bet. This acquisitive activity has led to a significant upsurge in REIT M&A.

Although concern over the impact of the much-heralded tax reform created a choppy REIT environment before its implementation at the end of the year, the actual changes to the tax code look set to benefit the REIT market. Most notably, the new 20% deduction on income from pass-through entities (which is a standard REIT corporate structure) will be a boon to REIT investors. In a further advantage, REITs will be permitted to opt out of new rules restricting taxpayers from deducting business interest expenses beyond 30% of earnings.

The main players in this space are Clifford Chance, Goodwin, Hogan Lovells US LLP, Latham & Watkins LLP, Skadden, Arps, Slate, Meagher & Flom LLP and Wachtell, Lipton, Rosen & Katz.

It should also be noted that Maryland has a special regime for REITs, which makes it a popular jurisdiction for forming REITs - in fact, most publicly held REITs are organized in Maryland. Venable LLP and Ballard Spahr LLP dominate on Maryland law-related REIT issues.

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