Esshaki Legal Media TeamCurrent as of January 2023
Construction lending funds against progress, and the conditions to each draw are
where the discipline lies.
Closing conditions. Approved plans and specifications; a fixed price or
guaranteed maximum price contract; the budget with contingency; permits; the
contractor’s qualifications, bonding and insurance; the survey; the title policy
with pending disbursement or mechanic’s lien coverage; and appraisal supporting
the loan to value on completion.
Draw conditions. An application certified by the borrower and the architect;
an inspection report from the lender’s consultant; lien waivers from the
contractor and subcontractors through the prior draw; title continuation
confirming no intervening liens; and confirmation that the loan remains in
balance.
In balance. The undisbursed proceeds plus committed equity must be
sufficient to complete. Where they are not, the borrower must deposit the
difference before further funding — the provision that governs every troubled
construction loan.
Retainage held on each draw and released on completion conditions.
Stored materials funded only with conditions on storage, insurance and
title.
Completion guaranty from a creditworthy party, distinct from a payment
guaranty.