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12/26/2014
Texas Is the Anti Consumer State


 The State of Texas is an Anti Consumer State.  

You may think that is easy for me to say and hard to prove, but let's look at the facts.  And by the way, I was born in Austin, grew up in Orange, Texas, went to the University of Texas and I have lived my entire life in Texas.  I don't say this because I have some out of state bias.  I say it because it is true and I want this state to be consumer friendly the way it is to business.  Or as George Bush would say "Bidness". 

I will offer the following exhibits: 

1. The Texas Residential Construction Commission.  Before this legislation, there was no oversight of construction and homebuilding in Texas.  The homebuilders wrote this law, so one can assume they were in favor of it.  They created the agency to force homeowners to go through an administrative process before litigation.  It allowed the builder the opportunity to make the repairs or offer to do so and if the consumer didn't like it, they could then file suit.  The important part for the builders was that the homeowner had no means of recovering attorneys fees so all but the wealthy had to navigate this administrative procedure without an attorney.   

It's gone now.  Why?  Well, it worked perfectly in getting the lawyers out of claims against home builders. Unfortunately, it introduced Registered Professional Engineers into the mix and they were prone to finding things the lawyers never thought about.  Plus, they were an industry with a stellar public image and the home builders were losing their shirts with all the defects the engineers would find.  

So, it was better to live with the devil they knew then the devil they didn't.  Bring back the lawyers, the big home builders said metaphorically.  And so they did.  The TRCC was defunded.  They stopped all revenue to support it and waa laa!  No more Texas Residential Construction Commission.  It lasted for about 3 years.  Take that Texas Consumers!

 

2. The Texas Residential Construction Liability Act.   This legislation supplants hundreds of years of Anglo-American jurisprudence founded on the bedrock principal that settlement negotiations should never be revealed to the jury or fact finder.  Hundreds of years of trials proved that it was vastly more conducive to settlements between the parties if they knew that their negotiations would not be revealed to the jury or fact finder.  This is true in every state and even true in Texas EXCEPT if you are a home buyer of a newly constructed home.  If you did just buy a newly constructed home, then there is a special law in Texas that rips your rights described above right out of your hands and puts it square in front of the jury or fact finder.  In the RCLA, the acronym for the above law, the home builder gets to make the home buyer a written offer.  This offer might be good, might be bad, might be a complete farce altogether, but the state of Texas has decided that that offer can be presented to the jury or the fact finder and then they can determine if it is reasonable or not.  Now, remember what I just said about hundreds of years of jurisprudence coalescing into current law against such a thing?  Well, if you were in a Texas court room for any kind of case but a new home dispute with  a home builder and you brought up a previous offer of settlement, the judge would declare a mistrial.  That is how sacrosanct that rule of evidence is.  However, if you are trying to sue over the biggest investment of a Texas consumer's life, it get's introduced and is usually put down in writing.  Take that Texas Consumer!

 

3. Texas Real Estate Commission Puts "AS IS" in All Texas Home Contracts.   There is a form used by nearly every Texas home buyer in the state.  It is created by the Texas Real Estate Commission (TREC).  It used to have an innocuous paragraph in it that said the following: 

"Buyer accepts the property in its present condition."  

 

Lawyers for the real estate companies and brokers like Kent Newsom and Jon Miller decided that they could argue that that meant that the consumer was basically buying the house "AS IS".  Texas Appellate courts, having that familiar old love of 'bidness and their anti consumer sentiment, agreed with this sophomoric reasoning.  Sophomoric you say?  Absolutely!  The "AS IS" defense derives from the sale of goods under the UCC. When a merchant sells goods and does not want to have any responsibility for them after the sale he asserts that they are sold "AS IS". It is up to the buyer to determine if the goods are defective or not.  The UCC even allows a period after delivery for inspection of the goods and rejection of them if defects are found.  The seller can not and does not say anything else about the goods in order to give enforceability to the "AS IS" clause.  

In Texas, however, Texas Appellate Courts have ignored the UCC origins and applied the "AS IS" proscription to Texas Real Estate.  As it is now, every houses in Texas is sold "AS IS" and the lawyers for the real estate companies and brokers would like Texas Consumers to believe they have no recourse for defects discovered after purchase.  Most probably will and most attorneys snooze through this outrageous violation of consumer rights and bastardization of Texas law.   Take that Texas Consumer!

 

Those are my particular top 3 reasons Texas is an Anti Consumer state.  I will offer more in subsequent blogs. 





Previous Entry
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11/28/2014
Article Dealing With Lax Home Building Laws
   
Next Entry
Heh Texas Homebuyer, You Just Bought that House "AS IS"

1/5/2015
The Texas Real Estate Commission Has Stuck It To You, Mr. Texas Home Buyer
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10/22/2007 - The Texas Residential Construction Commission
9/26/2007 - House Foundation Settlement
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9/2/2007 - Water damage and termites in our homes.
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Evin G. Dugas - Attorney at Law 512.261.0044 Evin@housedefects.com
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