Homeowners call for 'lemon law' legislation

[Guest guest]

http://www.dailytexanonline.com/vnews/display.v/ART/2002/10/16/3dad11ba3cc3a

Homeowners call for 'lemon law' legislation

Advocates ask that builders, sellers be held accountable

By Kris Banks (Daily Texan Staff)

October 16, 2002

A homeowner advocacy group demanded a " lemon law " for buying homes Tuesday

in front of the Texas Capitol.

Janet Ahmad, Home Owners for Better Building president, said lack of

regulation in the home-building industry and problems with homeowners'

insurance in Texas hang consumers out to dry.

" The building industry is out of control, " she said. " We will explore all

legal means to protect homeowners from predatory companies. "

Ahmad proposed a home lemon law that would work much like the lemon law that

applies to cars, in which the seller gets three opportunities to fix it, and

then the seller must buy it back.

Sen. Van de Putte, D-San , proposed a home lemon law in the

2001 session, but it was defeated.

Ahmad made complaints about mold despite a Texas Medical Association report

released last month stating that black mold was not a significant threat to

health.

Van de Putte said the Environmental Protection Agency had put forth

contradictory evidence to the TMA's.

Mold still represents a construction problem, Ahmad said. Ahmad showed

photographs of moldy boards in the frame of a house. The mold turned out to

be harmless, but that was of little comfort to her.

" That means in the best case scenario, decaying lumber is being used to

build our homes, " she said.

Ahmad had about 15 homeowners speak about their negative experiences in

buying a home recently.

Jim and Amelia Payne said they spent $150,000 on a home in Castroville that

has cost them $300,000. Amelia Payne said that despite buying their house

new, they had to reinforce the framing and straighten the roofing.

Jim Payne said they had to go through binding arbitration, meaning instead

of going to court, they met with their seller and a mediator.

At least five homeowners were from a subdivision in called the High

Meadow Subdivision. Channing had water leaking through his windows.

Tracie found a jug of water and Taco Cabana wrappers in her walls.

Vasquez had large yellow stains on her garage walls. All say they

bought their houses new.

Kristi Sutterfield, vice president of the Texas Association of Builders,

said lemon laws that are like those for automobiles would not work for

homes.

" Homeowners have it incumbent upon them to do preventive maintenance, " she

said. " If a homeowner changes the direction of his drainage, he may cause

water damage to his home's foundation. "

Sutterfield said the association favors arbitration instead of lawsuits.

Ahmad said Gov. Rick , Insurance Commissioner Montemayor and

Attorney General Cornyn have not done enough to protect consumers.

" Rick and Monte-mayor gave insurance companies everything they

asked for, " Ahmad said.

Gene Acuña, a spokesman for , said has been very attentive to the

problem of homeowners' insurance.

" The insurance crisis is the first issue the Legislature will face in the

2003 session, " he said.

Acuña said ordered an investigation into the matter of insurance in

February, before the crisis emerged.

[Guest guest]

I thought i had sent HOBB and Janet my Construction Lemon Law and had

posted it here. If not, here it is and I'll e-mail it to Janet. All

you have to do is change the word Massachusetts to your state. I

based on other current Federal and State Lemon Laws for other

products.

Ken Moulton

AN ACT TO PROVIDE FOR ENFORCEMENT OF LOCAL AND STATE BUILDING, FIRE,

HEALTH, SAFETY, ELECTRICAL AND BUILDING CONSTRUCTION LAWS AND

STANDARDS.

Be it enacted by the Senate and House of Representatives in General

Court Assembled, and by the authority of the same, as follows:

Chapter 1. Construction Lemon Law

Article 1. General

Provisions

12669.A. This Chapter shall be known, and may be cited. as the

H. Moulton Jr. Construction Lemon Law Act for Massachusetts.

Chapter 12669.B: Section 1. All new Commercial and Residential

construction or rehabilitated construction, must meet all applicable,

local, state and federal codes, standards and ordinances at the time

of the completion of construction or rehabilitation.

Chapter 12669.C: Section 1. Civil actions and remedies; class action;

demand for relief; damages; costs; exhausting administrative remedies.

Section 1. (1) Any person, or person's, who has (have) been injured

by another person, person's, local or state government employee,

local or state government agency, commission or body, a company or

corporation use or employment of any method, act or practice declared

to be unlawful or that is in violation of Local, State or Federal

Building, Fire, Plumbing, Electrical, Health or Safety codes or

standards may bring an action in the superior court, or in the

housing court whether by way of original complaint, counterclaim,

cross-claim or third party action, for damages and such equitable

relief, including an injunction, as the court or a jury deems to be

necessary and proper.

(2) Any persons entitled to bring such action may, if the use or

employment of the unfair or deceptive act or practice has caused

similar injury to numerous other persons similarly situated and if

the court finds in a preliminary hearing that he adequately and

fairly represents such other persons, bring the action on behalf of

himself and such other similarly injured and situated persons; the

court shall require that notice of such action be given to unnamed

petitioners in the most effective practicable manner. Such action

shall not be dismissed, settled or compromised without the approval

of the court, and notice of any proposed dismissal, settlement or

compromise shall be given to all members of the class of petitioners

by certified and registered mail delivered through the United States

Postal service.

(3) At least thirty days prior to the filing of any such action, a

written demand for relief, identifying the claimant and reasonably

describing the unfair or deceptive act or practice relied upon and

the injury suffered, shall be mailed or delivered to any prospective

respondent. Any person receiving such a demand for relief who, within

thirty days of the mailing or delivery of the demand for relief,

makes a written tender of settlement which is rejected by the

claimant may, in any subsequent action, file the written tender and

an affidavit concerning its rejection and thereby limit any recovery

to the relief tendered if the court or jury finds that the relief

tendered was reasonable in relation to the injury actually suffered

by the petitioner. In all other cases, if the court or jury finds for

the petitioner, recovery shall be in the amount of actual real,

medical, loss of use, legal fees and pain and suffering damages; or

up to three but not less than two times such amount if the court or

jury finds that the use or employment of the act or practice was a

willful or knowing violation of said section two or that the refusal

to grant relief upon demand was made in bad faith with knowledge or

reason to know that the act or practice complained of violated said

section two. For the purposes of this chapter, the amount of actual

damages to be multiplied by the court shall be the amount of the

judgment on all claims arising out of the same and underlying

transaction or occurrence, regardless of the existence or

nonexistence of insurance coverage available in payment of the claim.

In addition, the court or jury shall award such other equitable

relief, including an injunction, as it deems to be necessary and

proper. Notwithstanding any other provision to the contrary, if the

court or jury finds any method, act or practice unlawful with regard

to any security or any contract of sale of a commodity for future

delivery as defined in section two, and if the court or jury finds

for the petitioner, recovery shall be in the amount of actual damages.

(3A) A person may assert a claim under this section in a district

court, whether by way of original complaint, counterclaim, cross-

claim or third-party action, for money damages only. Said damages may

include double or treble damages, attorneys' fees and costs, as

herein provided. The demand requirements and provision for tender of

offer of settlement provided in paragraph (3) shall also be

applicable under this paragraph, except that no rights to equitable

relief shall be created under this paragraph, nor shall a person

asserting a claim hereunder be able to assert any claim on behalf of

other similarly insured and situated persons as provided in paragraph

(2).

(4) If the court or jury finds in any action commenced hereunder that

there has been a violation of section two, the petitioner shall, in

addition to other relief provided for by this section and

irrespective of the amount in controversy, be awarded reasonable

attorney's fees and costs incurred in connection with said action.

(5) Any person entitled to bring an action under this section shall

not be required to initiate, pursue or exhaust any remedy established

by any regulation, binding arbitration contract, administrative

procedure, local, state or federal law or statute or the common law

in order to bring an action under this section or to obtain

injunctive relief or recover damages or attorney's fees or costs or

other relief as provided in this section. Failure to exhaust

administrative remedies shall not be a defense to any proceeding

under this section.

(6) Recovering or failing to recover an award of damages or other

relief in any administrative or judicial proceeding, except

proceedings authorized by this section, by any person entitled to

bring an action under this section, shall not constitute a bar to, or

limitation upon relief authorized by this section.

>

http://www.dailytexanonline.com/vnews/display.v/ART/2002/10/16/3dad11b

a3cc3a

>

> Homeowners call for 'lemon law' legislation

> Advocates ask that builders, sellers be held accountable

> By Kris Banks (Daily Texan Staff)

> October 16, 2002

>

> A homeowner advocacy group demanded a " lemon law " for buying homes

Tuesday

> in front of the Texas Capitol.

> Janet Ahmad, Home Owners for Better Building president, said lack of

> regulation in the home-building industry and problems with

homeowners'

> insurance in Texas hang consumers out to dry.

>

> " The building industry is out of control, " she said. " We will

explore all

> legal means to protect homeowners from predatory companies. "

>

> Ahmad proposed a home lemon law that would work much like the lemon

law that

> applies to cars, in which the seller gets three opportunities to

fix it, and

> then the seller must buy it back.

>

> Sen. Van de Putte, D-San , proposed a home lemon law

in the

> 2001 session, but it was defeated.

>

> Ahmad made complaints about mold despite a Texas Medical

Association report

> released last month stating that black mold was not a significant

threat to

> health.

>

> Van de Putte said the Environmental Protection Agency had put forth

> contradictory evidence to the TMA's.

>

> Mold still represents a construction problem, Ahmad said. Ahmad

showed

> photographs of moldy boards in the frame of a house. The mold

turned out to

> be harmless, but that was of little comfort to her.

>

> " That means in the best case scenario, decaying lumber is being

used to

> build our homes, " she said.

>

> Ahmad had about 15 homeowners speak about their negative

experiences in

> buying a home recently.

>

> Jim and Amelia Payne said they spent $150,000 on a home in

Castroville that

> has cost them $300,000. Amelia Payne said that despite buying their

house

> new, they had to reinforce the framing and straighten the roofing.

>

> Jim Payne said they had to go through binding arbitration, meaning

instead

> of going to court, they met with their seller and a mediator.

>

> At least five homeowners were from a subdivision in called the

High

> Meadow Subdivision. Channing had water leaking through his

windows.

> Tracie found a jug of water and Taco Cabana wrappers in her

walls.

> Vasquez had large yellow stains on her garage walls. All

say they

> bought their houses new.

>

> Kristi Sutterfield, vice president of the Texas Association of

Builders,

> said lemon laws that are like those for automobiles would not work

for

> homes.

>

> " Homeowners have it incumbent upon them to do preventive

maintenance, " she

> said. " If a homeowner changes the direction of his drainage, he may

cause

> water damage to his home's foundation. "

>

> Sutterfield said the association favors arbitration instead of

lawsuits.

>

> Ahmad said Gov. Rick , Insurance Commissioner Montemayor

and

> Attorney General Cornyn have not done enough to protect

consumers.

>

> " Rick and Monte-mayor gave insurance companies

everything they

> asked for, " Ahmad said.

>

> Gene Acuña, a spokesman for , said has been very

attentive to the

> problem of homeowners' insurance.

>

> " The insurance crisis is the first issue the Legislature will face

in the

> 2003 session, " he said.

>

> Acuña said ordered an investigation into the matter of

insurance in

> February, before the crisis emerged.