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State Affair Hearing - Written Testimony
Friday, 22 April 2005

Statements and Letters... 
from those that could not attend the House State Affairs Public Hearing Monday April 18, 2005.

Dear Chairman Swinford and Committee Members:

 I would like to request that you hear the story of my experience in working with the Texas Residential Construction Commission before making your final decisions regarding new legislation pertaining to the TRCC.  I intended to come to the hearings on Monday in person; however I am being admitted into a study clinic at that morning.

 We bought a new home in March, 2004 in Bastrop.  We are living in a nightmare.  The home was never completed as agreed upon at closing.  The builder’s one-year warranty ran out last month, with numerous items unaddressed.  When we moved in, our dryer vent pipe (which exited through the slab beneath ground level) filled with 12 gallons of dirty water whenever it rained; our patio and driveway were covered with red mud and water after even a five minute rain.  The entire gutter system had but one downspout, so the gutters overflowed; erosion was rampant;  20 interior floor tiles cracked; the kitchen sink coating is eroded; the kitchen faucet is broken; there is mold both inside and outside the house; one bathroom heater is broken; another heater blows insulation into the bathroom when in use; there is a large hole sledgehammered in the slab under the Jacuzzi spa tub in the master bath; dirt comes in through the Jacuzzi jets; there are cracks in the ceiling; some electrical wiring is exposed; there are large leaks in the ductwork in the attic so our electric bill is higher than necessary...(These are examples, not the entire list)

 We are ill from the mold, but cannot afford to move and make two payments.  I am a Texas teacher on early disability retirement due to a serious auto accident.  Friends have offered a trailer for our driveway, but that is a deed restriction violation in our subdivision.  We have spent in excess of $30,000. in an attempt to mitigate our damages to the slab and combat our mold-related illnesses.   We spent $800.00 to have the mold analyzed.  We can not afford the thousands necessary for mold remediation.

 After our builder ignored our letters for nearly 6 months beyond the closing date,  we filed a SIRP complaint with the TRCC, paid $450.00 for an inspection and $30 to register our home which the builder had neglected to register (The $480.00 was refunded by the TRCC in December, 2004).  The builder also neglected to register himself, but was allowed to do that after we had filed a complaint against him with the TRCC and received the inspection report.  The third party inspector found numerous code violations and areas of poor workmanship.  The report was sent to us and to the builder.  Neither party challenged the report with the TRCC.  The builder chose not to participate in the TRCC’s mediation process.  He made no “offer to repair.”  After the two-week deadline, I called the TRCC to see what “happens next.”  I was told the process was completed and that the TRCC is set up only for mediation; they cannot force compliance on any builder.  The suggested solution was to pursue another avenue.

Last month we filed a lawsuit against the builder.  So now, we have been told by the TRCC that we are not allowed to litigate against the builder for any defects discovered after the September, 2004 TRCC inspection without going back through the entire process again, jumping through hoops that lead to nowhere. (This would include the mold and the sledgehammered slab and other serious items)  Meanwhile we get more ill.  We have been told there is no law which allows the TRCC to limit the litigation items after going through the SIRP procedure, but we have also been told there is no law which prohibits them from doing so.   It would seem obvious that a home that is poorly constructed would have new problems showing up during a six-month period.  Just exactly what is the purpose and scope of the TRCC; is it really set up to protect all citizens, or just the building industry?

This does not seem equitable for the homeowner to continue to get nowhere while a builder can ignore the entire SIRP process and still receive protection from the Commission for his due process.  Our doctor has told us to leave the house ASAP.  So, further time spent in reprocessing through the TRCC means more time for more health problems.   If the builder totally ignores his first opportunity for mediation in a TRCC SIRP, why then should he be allowed a second chance simply because some of his construction defects took a few months longer in discovery?  Even with a brain injury, I can see the inequity here...

In theory, the TRCC is a good tool to resolve construction issues outside the courtroom.  When I entered the process, I relied upon that theory.  In reality, the TRCC without any teeth to force builder compliance is a Commission serving no public purpose.    Why can't it be set up more like the Texas Department of Insurance where compliance is mandatory?   As it is set up now, the TRCC does nothing for the homebuyer; yet a homeowner is not allowed to sue a builder in the State of Texas until after going through the TRCC SIRP process as often as the number of new defects that become evident along the way.  Please help me to understand why that is a good thing for homeowners.

I am hopeful that the legislators will do something this session to right the wrongs here.  Otherwise many more of the plain hard-working people of this State of Texas will lose their health, their homes, and their monetary real estate investments.  We who are not wealthy are of no less importance under the law than those who have great wealth.  Or at least that's what I grew up in Texas thinking.  Maybe I am too trusting and naive...or just maybe, things have changed...

Thank you for listening and for any consideration you may give to me and to the other homeowners of Texas who trust you to do something equitable for everyone.  I hope some of you up there can recall at one time in your life being someone down here.  Please hear me.

Tempest Williams
Bastrop, Texas
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Chairman Swinford & Committee Members:

I would like my testimony in support of HB-3404 entered into the record.  I am unable to be present for this testimony due to chemo treatments I am currently receiving for metastatic breast cancer.

My husband and I contracted with a builder to build our "dream" home in January, 2001. I had just received my 5 year remission of breast cancer. My husband wanted to give me and our children something wonderful so we decided to build our new home. We owned 3 acres in Rockwall County, Texas. As is common practice, the land was used as collateral for the interim financing to build our home. After eight frustrating months the builder walked away. The home was 1/4 finished and the builder had made draws totaling approximately $170,000 from the total loan of $220,000. We had no choice but to file a lawsuit. We won a $61,000+ Judgment against him personally as well as his corporation under the "Deceptive Trade Practice" law. He filed a Chapter 7 Bankruptcy with his corporation and soon after opened a new company in the name of JM Building & Investments with his wife, Martha Furtick Tidwell & his sister-in-law, Janis F. Wilson as the representatives of this company, that currently builds and sells homes in the Kaufman, Texas area.

I have gone through a grueling process of phone calls and letters to TRCC asking that his registrations be revoked due to our outstanding judgment.  However, currently, if someone checked him out it would show the two companies.  One company is in a pending status and the other as not renewed.  Based on my experience, I must say the TRCC has no back bone, they are not showing this man for the kind of builder that he is.

As a direct result of this builders actions, we were forced to file bankruptcy, our life savings have been lost and my husband, a Dallas Firefighter now must work a second job as a Fire Inspector at UTSW Medical Center of Dallas. Fortunately, we had help from other family members to purchase another home.  My family, especially my children has been deprived of many happy memories in the home that we all at one time dreamed of.  Due to my health, we won’t ever get that dream home we should have had.  My cancer has returned and now we just get through each day the best we can.

Please, we need your help in changing the laws to protect homeowners against predators like this builder.  During the course of my experience I have found that this man and many other builders continue to take advantage of innocent families.

I have recently traveled to the Capital and visited with 25 Legislators encouraging them to support HB-3404.  I would like to officially register my support for Senator Farrar's Bill HB-3404 and any other legislation that would protect new home buyers.

Thank you for your time and the opportunity to voice my support of Representative Farrar's Bill HB-3404.

Sincerely,
Lisa A. Partington & Family
Royse City, TX 75189

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TO:  State Affairs Chairman David Swinford and all Committee Members:

     I want to express my support for the passage of HB3404 as a start in addressing my, and many others, ongoing concerns about the lack of controls on new home builders in this state. There seems to be no protection for the home buyer, who most of the time does not realize this until it is too late. These buyers are often licensed plumbers, electricians, barbers, beauticians, accountants, who are very careful about doing a good job and satisfying their customers. Mostly, I hope, because they take pride in their work, but also because they are ever mindful of being sued for some error or omission on their part and, possibly, losing that license and their means of making a living and supporting their families - not to mention paying for that new house that might have just started to disintegrate around them!!  

     I have been a Texas Licensed Real Estate agent/broker for 27 years, having previously been licensed in New Hampshire for three years. When I relocated to Texas, I could not just start listing and selling houses to the public and collecting money for doing so. I had to take courses in Texas Real Estate laws, principles and practices, then satisfy a licensed Texas Real Estate Broker that I was a worthwhile person for him to "sponsor" as an associate under his supervision if, and when, I successfully passed the licensing examination. My three years of experience in New Hampshire meant nothing.  This is to help the public buy and sell a house, where my financial interest is a small fraction of the price of the house. I can be sued because of my participation in that transaction. The new home builder, on the other hand, has no requirements regarding education, experience, financial or personal worthiness and no real liability to anyone and profits greatly from each completed house. Is this right? One only has to keep an eye on the news to know that there is some really bad construction going on, not just in Texas but all over. We all know that the big building companies have lots of money, high powered attorneys and therefore, can I say it? - Political Influence!!

     Please, Texas legislators, show the rest of the country, and your constituents, that you are big enough and strong enough to stand up to these power brokers - they'll get over it - and  do something to give some rights and protection to the vulnerable home buyer. 

     It has been many years since I have recommended a brand new home purchase to a client, I hope to see the day when I can change my mind on that. A brand new home with your choice of colors and materials, should be one of the most wonderful and exciting things in this world. Unfortunately, for many, it ends up as their worst nightmare.

Please do the right thing.

Elenore Scott

********************************************************
 
TO:  State Affairs Chairman Swinford and Committee Members:

     I have been a Texas Licensed Real Estate agent/broker for over 21 years and went to Austin to speak against HB730 2 years ago as I have witnessed several problems with the new home builders building shoddy, disposable houses.  Builders do not have to be responsible to anyone!  I listened to a builder speak at that meeting about how houses would increase in cost if builders had to be registered and licensed.  Real estate fees have certainly not increased because Realtors have to be licensed.

     Buying a home is the largest investment for most people and there is absolutely nothing required from the builder who is going to receive that money.  Being a Realtor, I must be very educated (I have a college degree & graduate courses), plus I had to take additional hours of specific real estate courses & ethics courses.  I had to take a very difficult state test, pay many fees to be licensed and then I must continue to take 15 hours of continuing state mandated educational courses every 2 years to keep my license, plus pay over $500 to renew my license.

     As I have seen in my career several Realtors have become builders.   They can make so much more money and they do not have to be accountable to anyone!  In the state of Texas they can become a "builder" for $125 and the annual renewal is only $50.  They do not have to be educated in the building industry, they do not have to pass a test, they do not have to be licensed, they do not have to have financial responsibility to anyone!  They build a house, if it is defective, not to worry, the TRCC cannot legally do anything to them.  First of all the poor homeowner has to come up with lots of money to just file a complaint against them.  Why would anyone go thru the trouble knowing the chances of them getting past the committee filled with builders, lawyers and people associated with the building industry are certainly going to favor the builder. If they were really lucky and the committee agreed with all their findings, what difference does it make, there is nothing the committee can do to enforce the builder to take care of the home buyer.

     Builders & contractors are about the only "profession" I know that can take money from the public and not be accountable to anyone.  Beauticians, manicurist, massage therapists, plumbers, electricians, Realtors, etc. all have to have some knowledge, usually have to take a test or do an apprenticeship, pay to be licensed and are accountable to the people who pay them!  Why does the State of Texas protect people from a person who gives haircuts and shampoos and not protect people from builders who build homes that people have to live in?  Doesn't make sense to me!

     I beg you to amend Chapter 416 of TRCCA (HB730) to include Chapter 303, Texas Star Builder Program Proposed Rules (Revised 11/17/04) making it MANDATORY for all homebuilders doing business in Texas.  Currently, the Texas Star Builder Program is voluntary.  If changed to mandatory, builders would be required to qualify by demonstrating knowledge, experience, proof and history of Financial Responsibility.  I know the builders will protest that this is going to cost the home buyers much more, but in reality, supply and demand from good home builders will really determine the price of the homes.  It just doesn't make sense why Builders have had a free time in the state of Texas to take advantage of the taxpayers and home buyers.  It is time for our politicians to stand up and fight for the consumers' rights to purchase a well built home.  Our cars are better built and have much better warranties than our homes and only cost a fraction of what some of these homes are costing.  Also car dealers are accountable in a court of law if they are found to be negligent!!! Please, please help the consumers, the people who elected you, the people who put their trust in you to protect them, and do not continue to protect the builders.

Evelyn Arentz 

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Chairman Swinford & Committee Members:

My name is Jo Hayman, and I live in Plano, Tx. with my husband Jim.  In 2000, we bought a new condominium from Richard Minkoff in the Oaklawn area of downtown Dallas.  Within 2 days, the condo flooded on all 3 floors, the gas was "red-tagged" and shut off by the gas company due to the pipes never being soldered together, the that was the beginning of a 2 year road to our demise.  The condo literally fell apart at the seams and after a law suit against the builder, both corporately and personally, he finally filed bankruptcy on the day after we received our court date for trial by jury in Dallas county.  This man was able to rob us of our retirement, and walk away "Scott-free".  The current system allows builders to do "legally" what would land them in prison if a weapon was used.

I am now the sole proprietor of "Cheetum Custom Homes", even though I am a Physical Therapist, by trade.  I know very little about home building  (sometimes I think I could do a better job then some builders I have seen), however, the state of Texas has given me their "blessing" to build homes, and then protect ME should problems arise.  The home buyer has no protection in the current system.  The TRCC is totally comprised of those with direct ties to the industry, and in the end, has no power to enforce their findings.  Since builders in Texas aren't licensed, can have absolutely no knowledge of building, and aren't required to show financial responsibility, the consumers are left to spend thousands of dollars to even begin a process of addressing construction defects.

Senator Ferrar's HB 3404, would address the problems with the current TRCC system, and give the homebuyer recourse when problems arise with their homes.  I strongly urge you to support this bill.  The number of dissatisfied homeowners is growing exponentially every day, and Texas is becoming known as a place to avoid moving to, due to our unregulated home building industry. 

I know of no other profession that is so unregulated, and deals with the largest purchase citizens will make in their lifetimes.  If I should unintentionally harm a patient, I would have mal-practice to compensate them for my mistake.  Your own personal physician, dentist, attorney, nurse, pharmacist, nail tech, barber, etc. are all required to possess knowledge of their trades, as well as be financially responsible.  Please see that the citizens of Texas have the same protection when buying a home.

Thank you,
 Jo Hayman
Board member – HomeOwners for Better Building
Dallas/Ft Worth Representative
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State Affairs Committee,

Remember the Alamo. Isn’t that where the good Texans fighting for their rights got splattered by the state representative? Several of us who have recently purchased new homes were elated when the State of Texas finally recognizing that its legislators had created an environment that is detrimental to the consumers and that it was trying to rectify the situation by creating the Texas Residential Construction Commission. However promising the intent and delivering the opposite is not in the interest of the consumer but of the builder. Read what this says,

The Texas Residential Construction Commission was created by the Texas Residential and Construction and Commission Act during the 78th Legislative Session.  The purpose of the Commission is to provide an alternative dispute resolution process for home owners and home builders. 

It appears to the consumers that the legislators speak with “fork tongue” that is what the Texas Indians use to say about the cavalry, because the snake with fork tongue appears to be friendly but bites without warning, the cavalry came in and promised protection while the solders were massacring the women and children, this is what the Texas Residential Construction Commission is doing with HB 4304, and Amendment HB 730 as the first attempt to rectify this fiasco. If the commission continues with its current path it will destroy what little consumer protection we have in this state, therefore why don’t we do what the Indians did, cut of the snakes head before it does harm, let us abolish the commission while the consumers still have some rights.  

Or we can take an alternate path, replace all individuals on the board that have or had connections with the building industry with individuals that will protect the consumers, not destroy the little protection they have. One of the major examples, why does the consumer have to pay for the inspection, it should be split equally between the builder and consumer and since most consumers lack the knowledge required, all irregularities should be noted by the inspector.   

Thank you for taking the time to read this letter and hopefully my opinion will be considered. You have a difficult task ahead of you, may the Lord provide you with the strength and knowledge necessary to do the right thing. 
Sincerely, 
Robert Gauvin, a concern citizen.
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State
Affairs Committee,

I am writing to express my support for changes to the TRCC and, more broadly, for greater protections for Texas homebuyers.

Briefly: In March 2004, I contracted with Paul Starr, owner of Tri-Starr Homes and Structures of Strength, two homebuilding companies in Wimberley, Texas. Mr. Starr breached the construction contract in several different ways, including by failing to adhere to the plans and specifications for my home (repeatedly substituting inferior materials and methods for those specified), by lying to me repeatedly, and, finally, by abandoning the project.

I was left with a home that was about 1/3 finished and that needed major repair work before construction could continue. To give an idea of the seriousness of the problems that had to be corrected, I paid about $2,000 just in

architect's and engineer's fees so that they could figure out how to correct structural problems caused by Mr. Starr. The bill for steel and welding for structural corrections will be nearly $6,000, and the total cost to complete my home, over and above the amount of my contract with Mr. Starr, will be $50,000 to $60,000. In addition, delays caused by Mr. Starr are adding several thousand dollars to the total interest I will pay on my construction loan.

These added costs will change my life for years to come. I will be working longer hours, not taking vacations, and retiring later.

My attorney (yes, of course I had attorney fees on top of all the other expenses) tells me that I have a very strong legal case against Mr. Starr. However, I know that Mr. Starr is deep in debt and on the verge of declaring bankruptcy. There is no doubt in my mind that any judgment I might win against him would be uncollectible. I would simply be out more money in attorney fees.

In short, I have absolutely no recourse against a man who acted in bad faith, broke the law, and cost me tens of thousands of dollars. Something needs to change. For starters, please establish a rigorous licensing process for Texas homebuilders.

Thank you,
Candyce Norvell
Austin, TX 78734

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House
 State Affairs
Dear Sir,

In 2002 we embarked on a journey to have our dream home built. Instead we ended up in a nightmare. Our builder, who was in financial trouble from the start of the project (we did not know this at the time), stole over $100,000 from our construction fund to use on other houses he was building at the time. He walked off the job site with our money and a half finished house. Silly us...we thought there were laws to protect us...people who did nothing wrong. As we found out there were no laws to protect us only ones to protect the builder. As he told one of his subs they can do nothing to me. He was pretty much right about that.

This builder is still walking around and living in a very fancy house in Barton Creek Lakeside while we pay bills that we should not have had to pay. This story is just one of thousands that could be told of shoddy homebuilders and builders who run off the job with construction fund money.

We think the new HB3404 is a good start, but there are a few things we would like to see added to that. First there needs to be some Consumer Representation on the TRCC...too many people who are connected to the building industry on the commission. Secondly, there needs to be another way to settle disputes other than binding arbitration which in short is a joke, in our opinion. Even if you win, the builder will appeal which means more money being paid out of your pocket for lawyers. The winners in all of these cases for the most part are the builders, who leave you with a shoddy house and have stolen your money, and the lawyers who have their hand in your pocketbook at every turn. We not only lost the $1000,000, but we were out lawyer fees as well.  

It is our theory that the builders of Texas to be dishonest until some of them are prosecuted and spend some time in jail. As it stands now the DA's will not help you. If just a few DA's would prosecute these builders then maybe some of the builders would think twice about being dishonest and building a shoddy home. 

We ask that in considering HB3404 that you make sure that the home buyer is protected, and that the laws are not in favor of the builders.

We would ask you two questions in closing. Have you ever heard of a home buyer ripping off a builder? The answer would be seldom if ever. Can you say the same thing for the builders of Texas? Seldom would not be the right answer...OFTEN would be the correct answer.

It is time the Representatives of Texas stood up for the people of Texas, who put them in office, and protect them from an industry which has had very few regulations. It is time to show the building industry that there is something we can do to make them build a decent home so everyone in Texas can have their dream home.

Thank you for listening and doing the right thing for the home buyers of Texas.

                      Sincerely,
                      Dr.Robert and Nell Bess
                      Johnson City,TX 78363        

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Dear Mr. Swinford,

It is my understanding that there is a bill to amend the Texas Residential Construction Commission (TRCC).  Under the current bill, we do not qualify for TRCC’s assistance.  Currently, we are under contract with a builder to buy a new spec house that falsified his qualifications to obtain our business.  After learning of this misconduct, we do not want to purchase the house and have asked the builder to release our earnest money.  The builder refused and is trying to steal our earnest money and force us to sign a confidentiality and non-disclosure agreement causing us to give up our 1st and 7th amendment constitutional rights.  We are seeking other alternatives other than arbitration, which would more than likely cost us more than our original investment.  Below is a high level outline of our situation.  

The problems are as follows:

  • Builder was not registered with the TRCC when contract was signed unbeknown to us (He had a sign posted in the front yard with a bogus license number)
  • Builder stated he had built 10-15 houses, but ours was his first (The builder had not build a single house for any of the 10 references he provided and admitted ours was his first months after we had signed the contract)
  • The house has severe major structural damage (Due to excessive rains, the master bathroom sank and broke away from the rest of the house causing major structural damage.  Apparently, the builder had originally tried to build a basement but filled it in when he was unsuccessful.)
  • Builder dug a huge hole in the back yard to burn and bury the building material waste, which is an environmental violation
  • We have not closed on the house
  • The house is not finished and is not livable
  • We deposited over 15K in earnest money with a 3rd party

Our action to date:

  • We had the house inspected by a 3rd party, which discovered the following:
    • House has major structural damage (A large section of soil settled under SW corner “master bath area” causing severe settling/cracking of foundation/slab from East to West.  Settling caused floor, roof, walls & framing to separate.)
    • House is not being built to code (one example: builder did not apply for a Storm water Elimination Permit, which is required by the IRC)
    • The footings are not deep enough (only 8” and is required to be at least 12”)
    •  The builder was not licensed/registered and had never built a house before
  • We had several licensed builders examine the construction and confirmed the inspectors report
  • The inspector and builders advised us to ask for our earnest money back and not to purchase the lemon
  • Builder refused to release our earnest money
  • We contacted the TRCC and were told that since the property is outside a municipality’s jurisdiction, the builder is not currently subject to the provisions of the IRC, which means the builder is unregulated and does not have to build to the IRC code

Our concerns:

  • Unqualified builder gets away with stealing our earnest money
  • Builder sells the house to the next unsuspecting buyer (Currently the house is on the market for over 40K of our price)
  • Building is unsafe
  • Builder thinks he is above the law and will continue to rip off the community

We have paid between 16-17K and desperately need help to retrieve back our earnest money.  It is unimaginable that anyone can represent himself as a builder in Texas, build a house that is noncompliant with building standards then steal our money.  In good faith we paid our earnest money for a house that has proven to be defective and are now subjected to paying for mistakes that were not of our making.  Any help you can provide to us is greatly appreciated.  Thank you for your time and consideration.
Sincerely,

Mrs. Jones  
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Dear Sirs: 

We had problems with our builder.  Many of these problems still exist, and more have been discovered.  Right now our estimates to correct the items found by the TRCC "in our favor" - against the builder - are about $56,000.00 to correct. This does not include any "structural" issues or other issues discovered since the initial inspection.

We were led to believe the TRCC would assist in resolving the issues.  They failed miserably as noted below.

TRCC did an inspection, which delayed our process of getting issues resolved.  TRCC did find in our favor on the items that were listed with them - but then had not teeth to do any enforcement to have the builder actually perform his warranty or any repairs.

Within the TRCC inspection:
One item noted in the inspection was listed by the inspector as requiring a "STRUCTURAL INSPECTION", which should have been automatically performed since that item was listed within the first application.  Instead, another application and more delays are required by TRCC.  Since TRCC now dictates laws, this must be done before we can get an attorney to get a court to force the builder to do what his contract specified. One item on the inspection report that is improperly mounted per the manufacturer’s instructions and has the wrong size wire going to it was checked off by the inspector as "OK" after he opened the box, manipulated a switch, and then forced the attic fan to run.  It is not "OK", as it is improperly mounted with the wrong size wire feeding it too short for it to be properly mounted.

In our opinion, as it exists now, TRCC is an additional lengthy process that is not only a waste of time, but a waste of taxpayer’s money. If TRCC cannot be fixed, if TRCC cannot correct its already existing errors, if TRCC cannot gain the teeth to enforce its own findings, then the TRCC should be totally abolished and dissolved since it is basically worthless to the consumer as it exists today.

TRCC took long enough that our builder has now left the State of Texas. TRCC should bring him back to answer to them or a court and comply with his contract and agreement and warranty.  If TRCC cannot actually resolve their own findings then they should not exist.
Sincerely,

Ray and Debbie Spencer
 Cresson, TX 76035

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State Affairs Commission
I will be travelling on business this Monday and therefore unable to participate in the legislative meetings that you have scheduled.  However, per our discussion I have summarized my thoughts on the TRCC process below. Please feel free to share these during your meeting.

1.  The TRCC staff was professional and responsive.

2.  The TRCC inspection process confirmed the existence of major structural defects in my home.  Despite this finding, the Builder did not submit an offer to make repairs in accordance with TRCC rules.  Ultimately, after months and months, they put forward an offer to repair that covered only a fraction of the actual repair costs.  In fact, the offer made did not even fully address TRCC inspector recommendations.

3.  I do not believe that the TRCC process adds value to homeowner efforts to resolve disputes with builders.  Builder strategy in these cases appears to be delay, delay, delay...I suppose in the hope that homeowners will run out of money or patience and will "go away."  In my view, the TRCC process supports that strategy.  It requires homeowners to spend money and follow a complicated and somewhat lengthy process.  At the end of the day, even if the homeowner successfully navigates this process, as I did, the TRCC has no enforcement authority and builders simply ignore the result.  Ultimately, homeowners with sufficient resources have to litigate to resolve their claims anyway...it just takes longer....costs more....and of course is risky because the possibility exists that a TRCC inspector may not find a defect (even if there is one).  In short, from the builders perspective there is a lot more potential upside benefit to this process than downside risk. Similarly, from the homeowners perspective there is a great deal of risk (and expense) with very little upside potential.

4.  I am an attorney...licensed to practice law in the State of Texas and I have read and re-read these rules.  They are extremely complex.  The Residential Construction Liability Act is itself very complicated.  The

Texas Residential Construction Commission Act and related rules are also very complicated.  The result is a hightly complex regulatory framework on top of an equally complex statutory framework....lots of room for unwary homeowners to make critical mistakes...and lots of room for builder mischief.  The process is tilted in favor of the builder from start to finish.

Those are my thoughts on the TRCC.  On a related matter, in my opinion the entire residential construction liability legal framework in the State of Texas is builder oriented.  Over the last number of years it seems that whenever a homeowner succeeds in litigation against a builder, the Texas legislature amends the Residential Construction Liability Act to "close the door" opened by the prevailing homeowner.  This has occurred time and time again.  The result is a legal framework where builders have very little incentive to build quality homes in the first place.  And, when they build defective homes, they have very little incentive to do anything about it.

In fact, a builder that totally and without question ignores his legal obligations is liable, at most, for just the economic damage that he has caused...no more....no penalties...no real risk.  Time is money...time is on the builders side and the TRCC process is one more advantage that the builder has.  Simply put, the builder has little or no incentive to take corrective action.  Whereas a homeowner that missteps can have his recoverable damages severely limited.

As we discussed, I am interested in committing time, expertise, and financial resources to an effort to bring about reform in this important area of the law.  I am also interested in educating the public regarding those legislators who have in essence "sold out" their constituency and support pro-builder/anti-homeowner laws.  In that regard, I would be interested in participating in a structured effort to organize and develop a clear set of objectives for reform and an implementation plan.

Thanks for the opportunity to input.
Charles Casey
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********************************************************** 

Dear Honorable David Swinford,

I am writing to you in regards to HB730 . In the last few years, the citizens of Texas have lost most of their consumers rights and protection when buying a new home. There has been more protection given to the builder than to the individual purchasing a new home. There is no successful resolution for the home owner who purchases a defective product. The legal system fails the new owner.

Most new home owners are given a home owners warranty. This warranty has a hidden binding arbitration clause. The new home owner must go to binding arbitration to resolve any disputes. What is not told to the new home owner is that the attorneys that preside over the arbitration are also the attorneys for the builders. The home owner is never given a fair chance. The decisions made by these builder's attorneys are binding. This whole process of arbitration is very expensive for the home owner. There have been no rulings in favor of the home owners that I have ever been aware of.

Last year Texas developed the TRCC. This commission collects a fee from the home owner of three hundred to six hundred dollars so that they may register a complaint. This commission, in my opinion has not helped the new home buyer but TRCC has added more cost and paperwork to file complaints. The development of RCLA has also added lengthy waiting periods for the consumer before the builder must taken action to fix any defects with a new home purchase. Binding arbitration with new home purchases does not allow the home owner any legal recourse if there is a defect that the builder refuses to repair or replace. Many new home builders make you waive your rights under the Deceptive Trade Act.

The builder is taking advantage of the new home buyer. These big builders lobby hard with big money to persuade law makers to vote in their favor. We need law makers who will support their constituents.

The housing industry depends are new home sales. Why do the citizens of Texas want to buy new homes? There is no lemon law in Texas for the housing industry. There is no consumer protection for the home owner and the legal system is stacked in favor of the builder.

My husband and I purchased a property at 1515 Hyde Park Crescents in Houston, TX. We purchased our home from Stature Construction Inc., DAB Tremont Homes, on October 23, 2000.

We discovered multiple sites of water incursion shortly after we moved in. After investigation it turned out that the primary incursion was through a series of improper wall to roof flashing as well as improperly installed stucco. These leaks caused structural damage to our home. Multiple attempts were made to repair the problems, none of which remedied the problems to our satisfaction. Our home developed mold.

My husband and I discussed our options. After prolonged exchanges with the builder's attorney and our attorney our home was repurchased by the builder.

This experience made us aware of the flaws within the building industry. It made us aware of the need for reform. Texas's citizens need to HB 3404, I am asking you to support HB3404.

Thank you,

Carla Bistrick
Houston, Texas
**********************************************************
April 23,2003 

To: State Affairs, Chairman, Swinford and Committee Members:

My husband and I are senior citizens and grandparents. We cannot be here tonight, because we are under a restraining order, preparing for our hearing and being sued. We are also being sued under the quise of AAA arbitration, our builder has filed charges on us, because we would not going quietly into foreclosure and bankruptcy.

We own a $360,000 dollar new home, that is uninhabitable and in need of $180,000 worth of repairs..... We live in an apartment..... This is not how we envisioned our lives in our sixties.

To say that we are financially, emotionally and physically exhausted can in no way confer the meaning of what has been done to us.

My Builder, Tremont Homes, the parent company ... is a registered builder with the TRCC. However, it's numerous DBA's, partnerships, LLC's. entities and affiliations are not, and do not have to be...... TRCC says they "would like for them to be," so would I. TRCC can tell my builder, he needs to fix my house. But my builder doesn't have to do that. My house was sold under fraudulent conditions, but the TRCC cannot address that. They cannot require my builder to buy my house back no matter what the circumstances.  

The builder has no fear, and circumvents state and local laws at will. My builder has even been thrown out of the Better Business Bureau, they are the only agency that has taken a stand. I have been from the Attorney General all the way to the Health department. It has been a degrading and circuitous route.

What makes Tremont Homes and other bad builders so arrogant, greedy and unaccountable?  Thomas Jefferson had the answer, and it still applies, "He will cheat without scruples who can cheat without fear." These builders cheat without fear because ... absolute power ... corrupts absolutely. Our Seventh Amendment rights have been taken from us and now they want our first.

We live in an ADR State.  We are told to go to the TRCC...for RCLA and SIRP because we no longer have the DTPA and we will end up in AAA. This system is so broken, confusing, time consuming, and frustrating, it is no wonder we find ourselves homeless in Houston. 
Respectfully, 

Jordan Fogal
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*************************************************************************************** 

Drees Homes Complaint  

From the time we first spoke to Drees and signed a contract on our home we understood that the road connected to our front and side yard, was a neighborhood access road.
 
. 

Mr. Luis Tapia (Drees Sales Representative) informed us that this road was only to connect to Highway 720. As of April 2004 Highway 720 was renamed to Eldorado Parkway. 

On several occasions we talked to Mr. Tapia about Eldorado Parkway because we were then living in a house one block off of Highway 720, and the traffic is so bad we can’t get out of our street. 

 

The reason we decided to buy a new home in Eldorado West, was to get out of the traffic and stay in the Little Elm school district. Also, our daughter just got her driver’s license and we would be close to the new high school and wouldn’t have to drive to school on Highway 720. 

Then after just four months in our new home we get a letter, from the city that Eldorado Parkway

is going to be a main Corridor from Highway 75 to Highway 35 when a toll bridge is completed. The very thing that we were trying to get away from had just been put at our front door. The fact is it has been discovered the road will carry 46,000 cars per day as estimated by the NCTCOG (North Central Texas Council of Governments) and will also allow for heavy truck traffic. It has been discovered through the Town Managers Office that Drees knew about the corridor from the inception of the subdivision via John Baker, the developer of the land and the developer of section 7 of the corridor.  

The city has painted a crosswalk on the corner of our yard and installed sign’s. Now the other homeowners want a traffic light in addition to the street light & fire hydrant that already exist on  the corner of our yard.  We are now faced with a major intersection directly adjacent to our new home.

This will definitely have an impact on my family’s safety and well being due to the extensive amount of traffic, noise and pollution. Had Mr. Tapia disclosed Drees knowledge of this road, we would not have purchased this home.

Our foundation is moving like a train, our roof is moving, the ceiling is lifting off walls and walls are lifting off the floor.  We have huge cracks throughout the house.  

Drees deceptive practices, along with their shoddy building practices and the highway have caused us so much unhappiness; we just want Drees to buy back our house. 

Our family has been deprived of safety for our child, and caused a real burden for the resale of our home, which has left us both emotionally and financially drained.

We do not want to be subjected to further discomfort or paying for mistakes that were not of our making but that of Drees Homes.  

We must put regulation on builders which are turning out less than adequate housing in Texas.

Kathy Thomas
 Little Elm, TX
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******************************************************** 

State Affair Committee:

My name is Heather Mickelson. I am a 26 year old college graduate and a first time home buyer.  In July of 2004, I made the biggest financial decision of my life - I became the proud owner of a Tremont Condominium overlooking Downtown Houston in the heart of Montrose. 

I am here to report to you less than a year later- the same condo I was so proud to buy has become my worst nightmare.  Since the State of Texas excludes condo owners from the TRCC, I have nowhere to go for help or protection.  My condo is uninhabitable and I owe the bank almost a quarter of a million dollars.  To top it off - I am homeless.

 

My condo is defective and I've experienced mold-like related symptoms including: fever, bloody noses, hour long coughing attacks, swollen eyes, and dementia.  My condo has water leaks throughout the entire building, making it impossible for me to remove the mold.  There are over 15 large bubbles swelled up full of water on the roof from poor patching and water seeps throughout the interior walls.  Other tenants have complained, like myself, to get leaks fixed.  Only 10 tenants reside in the 76-unit defective tower.  Units #310 and #510 are closed and shut down for mold remediation.  My unit happens to be #410, Am I responsible for my own mold remediation?

 

I have written to elected officials for help and have been sent in one big circle, going around and around getting dizzy and going nowhere.  Senator Hutchison notes the TRCC has my answers.  The TRCC does not include condos.  The Fed Trade Commission notes the Magnuson-Moss Warranty Act, in which I again am excluded from its protection.

 

Right now, the Texas law provides zero protection to myself and other home owners (condos).  Zero. Zippo. Zulch.

 

My excitement in the American Dream and in home ownership is now nauseating and sickening.  How could an innocent, good hearted, intelligent girl get taken?  Why is the State of Texas letting the homebuilders get away with it?  I will spend the rest of my life repaying the bank $230,000 owed on my condo and remain homeless in doing so.

 

Distraught and Homeless and Sick,

Heather Mickelson 

****************************************************************

State Affair Committee

 

We, Rowena and Sam Lyle, bought our home in Irving, Texas in September 2003 from Autumn View Homes. This builder built many homes in this same area. Most of us had several substantial problems as these homes were being built. Some problems were corrected. The other homeowners became tired of asking the builder to correct his mistakes and expressed no hope in politicians. I asked Texas Representative Steve Wolens for help and he directed me to the Texas Residential Construction Commission.

We applied and received their SIRP. A short time later, TRCC sent out a licensed structural Engineer who inspected my home; found major structural problems; wrote a detailed report of what is wrong and his recommendations as to how to repair the construction defects. I had a Contractor review those recommendations and inspect for himself. He estimated the repair at $38,000 (not including putting us up during the repair).

The TRCC gave us a final letter informing us that their part was complete and that the documents we’ve been given during the process constitute rebuttable presumption which should help us in court if we choose to file a case against the builder.

I asked Alex Horton of the TRCC if they’d list this builder as bad or revoke his TRCC registration and he said that a statute doesn’t require him to. I’ve yet to locate a lawyer who wants to take the case whom I can afford.

The BBB chose to list the builder as only “not responding.”

I’ve asked the City of Irving inspectors to answer for their mistakes and so far they’ve agreed that they missed these errors but haven’t offered any remedy. 

I’m glad the TRCC exists as a starting place but by refusing to revoke the registration of a builder that they determined to be bad is an act of intentionally sanctioning of these violations. 

 

Rowena and Sam Lyle

Irving, TX 75061

**************************************************************** 

TELEPHONE STATEMENTS FROM UNHAPPY HOMEOWNERS WHO COMPLETED THE TRCC/SIRP PROCESS (by permission)

Jim & Cindy Habel: Builder is Jasko home - problem is 2600 sq. ft. of uneven ceramic tile (described it as a roller coaster). He has not received a response from the builder. TRCC refunded him his money back. The builder never even registered their house, they did it themselves. He will be going to arbitrator and then an attorney. Not happy with the lack of TRCC enforcement on builder.
Amerillo, Texas

James and Stephanie Brown: Builder is George Byers – they had severe plumbing problems. This was their dream home - after having a few guests over for a weekend, the house flooded with sewage out of the bathtubs. Builder had to re-do all the plumbing; it was not in compliance with code regulations. It has been a year and the builder still owes them several thousand dollars that they had to pay themselves at start of these problems. Not happy with the TRCC not following up and forcing the builders to follow through completely. 
San Antonio, Texas

Sam & Rowena Lyle (email forwarded to you): Builder is Autumn View – the second floor tips during heavy winds. He was told that since the floorplan on the 2nd floor doesn’t go over the entire house, his second floor has less support and the house sways. He was interviewed in the Dallas Morning Newspaper regarding TRCC and gave his opinions in the interview. He is in the process of finding an attorney, has not gone through and arbitrator. He was glad there was an agency in place but felt that they did not have enough power to really monitor the builders. He felt that the TRCC was just a show, to pretend like there’s an avenue for help but in the end they don’t really enforce anything. TRCC refused to change his builder from having a good standing and only stated that there’s 1 complaint about them (on the TRCC website).
Carrollton, Texas

Michael Carey: Builder is Taylor Construction – have several structural issues, many things in the home are not to code, builder added thousands of dollars worth of upgrades that he did not ask for and they would not close on his house until he agreed to pay for the extras they added.  Builder is not responding and the work is not complete and he feels that suing is the only option now. He liked the inspector but that TRCC is not forcing the builder to do anything.
Weslaco (Harlingen), Tx

William and Terr Andrews: Builder is Plantation – they have cracked foundation, the builder knowingly sold the house to them with problems. They also state the builder fraudulently sold the house without disclosing problems. They live in Pflugerville and William was going to try to make it. TRCC is a joke and have hired a lawyer to deal with this case; it has been almost 2 years now. .
Pflugerville

Lisa Straiton: Builder is Jim Ellis – her house had to be re-painted after only a year and they only re-painted a portion of it. She could not even find where her builder was registered, does not think that he is. The inspector only addressed a few things in her complaint letter not all of it. TRCC did not do anything to follow up with the builder to ensure her issues were addressed.
Magnolia, Tx

Richard & Olivia Tackett - Barfield is the builder. They said the TRCC people were professional but they did not force the builder to fix their problems. They have a lawyer now and have been in court for a year.   

David & Cecilia Green - Buchanan is the builder. They said that going through TRCC was no help at all because the builder did not fix anything.

 
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