Texas 2009 - 81st Regular

Texas House Bill HB3182 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R10162 AJA-F
2	2	By: Thompson H.B. No. 3182
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to consumer protection for and remedies available to a
8	8	homebuyer whose home does not comply with certain warranties;
9	9	providing an administrative penalty.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 4, Property Code, is amended by adding
12	12	Chapter 30 to read as follows:
13	13	CHAPTER 30. TEXAS HOMEBUYER PROTECTION ACT
14	14	Sec. 30.001. SHORT TITLE. This chapter may be cited as the
15	15	Texas Homebuyer Protection Act.
16	16	Sec. 30.002. DEFINITIONS. In this chapter:
17	17	(1) "Administrator" means the administrator of the
18	18	Texas Real Estate Commission.
19	19	(2) "Commission" means the Texas Real Estate
20	20	Commission.
21	21	(3) "Contractor" means a person who, for compensation,
22	22	engages in the construction, remodeling, repair, modification, or
23	23	improvement of a building or a portion of a building used primarily
24	24	for residential purposes.
25	25	(4) "Defect" means a condition that prevents a home
26	26	from conforming to a contractor's warranty, including a warranty
27	27	described by Section 30.008(c) or any other warranty provided by
28	28	law.
29	29	(5) "Home" means a single-family house, duplex,
30	30	triplex, or quadruplex or a unit in a multiunit structure used for
31	31	residential purposes that is used or intended to be used as a
32	32	dwelling by one of the owners.
33	33	(6) "Homebuyer" means a person who:
34	34	(A) purchased a home from a contractor and is
35	35	entitled to enforce the terms of a contractor's warranty with
36	36	respect to the home;
37	37	(B) is a lessor or lessee, other than a
38	38	sublessee, who purchased or leased the home from a contractor; or
39	39	(C) is a transferee or assignee of a person
40	40	described by Paragraph (A) or (B) if the transferee or assignee is a
41	41	resident of this state and entitled to enforce the terms of a
42	42	contractor's warranty.
43	43	(7) "Serious safety hazard" means a life-threatening
44	44	malfunction, installation defect, or nonconformity that
45	45	substantially impedes a person's ability to live in or use a home or
46	46	that creates a substantial risk of fire, explosion, or exposure to a
47	47	toxic substance.
48	48	(8) "Warranty" means an express or implied warranty.
49	49	Sec. 30.003. APPLICABILITY OF CERTAIN OTHER LAW OR CONTRACT
50	50	PROVISIONS. (a) This chapter supersedes any other law or contract
51	51	provision that conflicts with this chapter.
52	52	(b) The remedies provided by this chapter supersede
53	53	remedies available under Chapter 27 or Title 16.
54	54	(c) Except as provided by this section, this chapter does
55	55	not limit the rights or remedies otherwise available to a homebuyer
56	56	under any other law.
57	57	(d) A contract provision that excludes or modifies the
58	58	remedies provided by this chapter is prohibited and is void as
59	59	against public policy unless the exclusion or modification is
60	60	included in a settlement agreement between a homebuyer and a
61	61	contractor.
62	62	Sec. 30.004. COMPLAINT. A homebuyer may seek a remedy
63	63	provided by this chapter by:
64	64	(1) providing to the contractor written notice
65	65	identifying each defect in the home that is covered by the
66	66	contractor's warranty; and
67	67	(2) filing a complaint with the commission that
68	68	includes a copy of the notice provided under Subdivision (1) on or
69	69	before the 30th day after the date the notice is provided.
70	70	Sec. 30.005. HEARING. (a) The administrator may set a
71	71	hearing on any allegation in a complaint that is not privately
72	72	resolved between the homebuyer and the contractor.
73	73	(b) The contested case provisions of Chapter 2001,
74	74	Government Code, apply to a hearing conducted under this chapter.
75	75	Sec. 30.006. TIME FOR FILING COMPLAINT. (a) Except as
76	76	provided by Subsection (b), a homebuyer must file a complaint under
77	77	this chapter before the earlier of:
78	78	(1) the date the express warranty period expires; or
79	79	(2) the 10th anniversary of the closing date.
80	80	(b) A homebuyer may file a complaint to which Section 30.010
81	81	applies on or before the 10th anniversary of the closing date.
82	82	Sec. 30.007. AFFIRMATIVE DEFENSE. In a hearing before the
83	83	administrator under this chapter, a contractor may assert as an
84	84	affirmative defense to an allegation of a defect made in a complaint
85	85	filed under this chapter that the defect is the result of abuse,
86	86	neglect, or modifications or alterations of the home made by a
87	87	person other than the contractor.
88	88	Sec. 30.008. REPAIR REQUIRED. (a) Except as provided by
89	89	Section 30.010, if a defect exists, the contractor shall make the
90	90	repairs necessary to conform the home to the contractor's
91	91	warranties if:
92	92	(1) the homebuyer or the homebuyer's designated agent
93	93	reported the defect to the contractor or the contractor's agent
94	94	before the expiration of the applicable time limit under Section
95	95	30.006; or
96	96	(2) a breach of a warranty described by Subsection (c)
97	97	on the home is established.
98	98	(b) The contractor must make the repairs required under
99	99	Subsection (a) not later than the 120th day after the date the
100	100	notice of the defect required by Section 30.004 is received by the
101	101	commission.
102	102	(c) Notwithstanding any other law, there is a presumption
103	103	that a breach of a warranty on a home exists if the home does not
104	104	comply with:
105	105	(1) a building code applicable to the home;
106	106	(2) the version applicable in the jurisdiction in
107	107	which the home is constructed of:
108	108	(A) the International Building Code for One- and
109	109	Two-Family Dwellings;
110	110	(B) the National Electric Code for One- and
111	111	Two-Family Dwellings; or
112	112	(C) the manufacturer's specific installation
113	113	instructions for the part or component used in construction of the
114	114	home; or
115	115	(3) structural engineering standards or practices
116	116	intended to prevent structural damage or a decrease in the market
117	117	value of the home resulting from the failure of the foundation or
118	118	other load-bearing portions of the home, including standards or
119	119	practices used to ensure that a foundation is structurally
120	120	sufficient without artificial moisture controls or other
121	121	extraordinary maintenance by the homeowner.
122	122	Sec. 30.009. RETURN OR REPLACEMENT REQUIRED. (a) Except as
123	123	provided by Section 30.010, if the contractor is unable to cure a
124	124	defect within the period prescribed by Section 30.008(b) and the
125	125	defect creates a serious safety hazard, substantially impairs the
126	126	use of the home, or decreases the home's market value by more than
127	127	five percent, the contractor shall at the homebuyer's option:
128	128	(1) replace the home with a comparable home in the same
129	129	neighborhood; or
130	130	(2) accept return of the home from the homebuyer and
131	131	refund to the homebuyer the full purchase price and any closing
132	132	costs and reasonable moving costs.
133	133	(b) The administrator may not order a remedy under this
134	134	section unless the contractor has been provided at least the number
135	135	of days prescribed by Section 30.008(b) to cure the defect that is
136	136	subject to the remedy provided by this section. The period required
137	137	by this subsection is extended by the amount of time during which
138	138	repair services are not available to a homebuyer because of a war,
139	139	invasion, strike, or fire, flood, or other natural disaster.
140	140	Sec. 30.010. MOLD CONTAMINATION. (a) Not later than the
141	141	30th day after the date of the administrator's order of a remedy
142	142	under this section, the contractor shall accept return of the home
143	143	from the homebuyer and refund to the homebuyer the full purchase
144	144	price and any closing costs and moving costs if, in addition to a
145	145	notice of a defect required by Section 30.004, a homebuyer:
146	146	(1) provides to the contractor and the commission
147	147	written results of tests that:
148	148	(A) are conducted by a mold testing laboratory
149	149	certified for the purposes of this section; and
150	150	(B) demonstrate proof of unacceptable levels of
151	151	toxic mold contamination that pose an imminent threat to the
152	152	health, safety, or welfare of the inhabitants; and
153	153	(2) establishes that the contamination arises out of
154	154	the defect.
155	155	(b) The commission by rule shall designate at least one
156	156	private organization that certifies mold testing laboratories from
157	157	whom certification is sufficient for the purposes of this section.
158	158	Sec. 30.011. REIMBURSEMENT OF EXPENSES. (a) If a
159	159	contractor is ordered to replace a home or refund the purchase price
160	160	under Section 30.009 or 30.010, the contractor shall reimburse the
161	161	homebuyer for:
162	162	(1) reasonable incidental costs resulting from the
163	163	loss of the use of the home because of the defect; and
164	164	(2) lost wages resulting from time required for
165	165	appointments with the contractor or the contractor's
166	166	representative that are necessary because of the defect.
167	167	(b) As necessary to promote the public interest, the
168	168	commission by rule:
169	169	(1) shall define the incidental costs that are
170	170	eligible for reimbursement under Subsection (a) and specify other
171	171	requirements necessary to determine an eligible cost; and
172	172	(2) may set a maximum amount that is eligible for
173	173	reimbursement, either by type of eligible cost or by a total for all
174	174	costs.
175	175	(c) Refunds shall be made to the homebuyer and primary
176	176	lienholder, as applicable.
177	177	Sec. 30.012. OTHER REMEDIES NOT PRECLUDED. This chapter
178	178	does not prevent a homebuyer from obtaining a remedy available to
179	179	the homebuyer under a new home warranty that provides remedies in
180	180	addition to those provided by this chapter.
181	181	Sec. 30.013. RIGHT TO FILE ACTION. (a) Except as provided
182	182	by this section, a homebuyer may not seek the remedies provided by
183	183	this chapter in a civil action unless the homebuyer files a
184	184	complaint against the contractor under this chapter and exhausts
185	185	the administrative proceedings provided by this chapter. A court
186	186	shall dismiss an action filed in violation of this section.
187	187	(b) If the hearing examiner does not issue a proposal for
188	188	decision and make a recommendation to the administrator for a final
189	189	order on or before the 150th day after the date a complaint is filed
190	190	under this chapter, the administrator shall provide written notice,
191	191	by certified mail, to the complainant and the contractor.
192	192	(c) The notice must inform the recipient of:
193	193	(1) the date the period for issuing a final order under
194	194	this chapter expires; and
195	195	(2) the complainant's right to file an action under
196	196	this section.
197	197	(d) After receiving a notice of the right to file an action
198	198	under Subsection (b), a complainant may file an action against a
199	199	contractor named in the complaint. The administrator's failure to
200	200	issue a notice of the right to file an action does not affect a
201	201	complainant's right to bring an action under this section.
202	202	Sec. 30.014. JUDICIAL REVIEW. A final order of the
203	203	administrator under this chapter:
204	204	(1) is the final action of the commission under this
205	205	chapter; and
206	206	(2) is subject to review only by judicial review as
207	207	provided by Chapter 2001, Government Code, to the extent that
208	208	chapter is not inconsistent with this chapter.
209	209	Sec. 30.015. INITIATION OR REMOVAL OF ACTION. (a) Except
210	210	as otherwise provided by this chapter, an appeal initiated under
211	211	this chapter may be removed to the Third Court of Appeals District
212	212	if any party to the action files a notice of removal with the
213	213	district court before the trial in the district court begins.
214	214	(b) An appeal initiated in or removed to the Third Court of
215	215	Appeals District:
216	216	(1) must be initiated under Chapter 2001, Government
217	217	Code, as if initiated in a Travis County district court; and
218	218	(2) is governed from the time of filing by the Texas
219	219	Rules of Appellate Procedure.
220	220	(c) If evidence outside the commission's record is to be
221	221	admitted in an appeal under Chapter 2001, Government Code, or
222	222	otherwise, the action:
223	223	(1) must be initiated in a Travis County district
224	224	court; or
225	225	(2) if initiated in the Third Court of Appeals
226	226	District, is subject to remand to a Travis County district court for
227	227	proceedings in accordance with instructions from the court of
228	228	appeals.
229	229	(d) Citation must be served on the administrator and each
230	230	party of record before the commission. For an appeal initiated in
231	231	the Third Court of Appeals District, the court shall cause citation
232	232	to be issued.
233	233	Sec. 30.016. DILIGENCE REQUIRED. (a) An appellant must
234	234	pursue an appeal with reasonable diligence. If an appellant fails
235	235	to prosecute an appeal in the six-month period after the appeal is
236	236	filed, the court shall presume that the appeal has been abandoned
237	237	and dismiss the appeal if a motion for dismissal is submitted by the
238	238	attorney general or another party.
239	239	(b) An appeal may not be dismissed under this section if the
240	240	appellant, after receiving notice and an opportunity to be heard,
241	241	demonstrates good cause for a delay.
242	242	Sec. 30.017. DISCLOSURE REQUIRED. (a) A contractor that is
243	243	ordered to refund the purchase price of or replace a home under this
244	244	chapter shall provide to the first retail purchaser of the home
245	245	after the home was repurchased or replaced by the contractor a
246	246	disclosure statement stating that the home was repurchased or
247	247	replaced by the contractor under this chapter.
248	248	(b) The disclosure statement must include the toll-free
249	249	telephone number established by the commission under Section
250	250	30.019.
251	251	(c) Before a home repurchased or replaced under this chapter
252	252	may be sold again, the deed that transfers title to the home must be
253	253	marked with a clear statement that indicates that the home was
254	254	repurchased or replaced under this chapter.
255	255	Sec. 30.018. RESTORATION OF WARRANTY REQUIRED. A
256	256	contractor who sells a home after repurchasing or replacing the
257	257	home under this chapter must:
258	258	(1) restore the home in a manner that conforms with
259	259	applicable building codes; and
260	260	(2) issue an express warranty for the home.
261	261	Sec. 30.019. TOLL-FREE TELEPHONE NUMBER. The commission
262	262	shall establish a toll-free telephone number for providing
263	263	information to persons who request information about a defect that
264	264	was the basis for ordering a remedy under this chapter. The
265	265	commission shall maintain an effective method of providing
266	266	information to persons who make requests.
267	267	Sec. 30.020. ANNUAL REPORT. (a) The commission shall
268	268	publish and make available to the public an annual report relating
269	269	to homes ordered repurchased or replaced by a contractor under this
270	270	chapter.
271	271	(b) The report must:
272	272	(1) list the number of homes by subdivision name, if
273	273	any;
274	274	(2) identify the contractor; and
275	275	(3) include a brief description of each defect that
276	276	was the subject of a remedy provided by this chapter.
277	277	(c) The commission may charge a reasonable fee to recover
278	278	the cost of the report.
279	279	Sec. 30.021. ADMINISTRATIVE PENALTY. (a) The commission
280	280	may impose an administrative penalty on a person who violates this
281	281	chapter or a rule or order adopted under this chapter.
282	282	(b) The imposition of a penalty is governed by Subchapter O,
283	283	Chapter 1101, Occupations Code.
284	284	Sec. 30.022. RULES. The commission, in consultation with
285	285	the Texas Real Estate Inspector Committee, shall adopt rules
286	286	necessary for the enforcement and administration of this chapter.
287	287	SECTION 2. (a) This Act takes effect September 1, 2009.
288	288	(b) This Act applies only to the sale of a new home for which
289	289	the closing date is on or after September 1, 2009. A sale of a new
290	290	home for which the closing date was before September 1, 2009, is
291	291	governed by the law in effect at the time of the sale, and that law
292	292	is continued in effect for that purpose.