Originally Posted By: rbracklow
This post was automatically imported from our archived forum.
This is quite interesting!!
OUTRAGEOUS! Buy a New Home ? Don?t Sue and Shut Up
Homebuilders will stop at nothing ? Now Buyers must agree not to Speak
Beware of New Clause ? Homebuilder requires that homebuyers sign an Arbitration Agreement at closing causing them to give up their 1st and 7th constitutional rights. For the homebuyer it?s a decision between constitutional rights and the American Dream.
Buyers must agree not to: FILE ANY PROTEST, GRIEVANCE, OR COMPLAINT? INCLUDING THE BETTER BUSINESS BUREAU OR ANY MEDIA ENTITY, TELEVISION OR OTHERWISE? AGREES THAT NO SIGN OR BILLBOARD OR WRITING OR CHART OR DRAWING CONCERNING THE CONDITION OF THE HOME AND/OR PROPERTY SHALL BE ERECTED OR PLACED IN SUCH A WAY THAT IS VISIBLE TO PERSONS PASSING BY THE PROPERTY? and much more.
Also contained in the contract is a biased arbitration provision that specifies the use Construction Arbitration Services (CAS). If that isn?t enough, the final clause in the agreement could cost homeowners their home ? ?A SUM EQUAL TO THE PURCHASE PRICE, OF THE HOME,? if the owner appeals the arbitrators? decision to the appellate courts.
See related HOBB article: Public Citizens News Release September 01, 2004
CAS Arbitration Investigated ? Recently an investigative report by Public Citizen helped launch numerous state investigations ? The Public Citizens report points to Home Buyers Warranty (HBW) and their specified arbitrator (CAS) as having close ties, which could lead to a biased mandatory arbitration process that shields ?homebuilders from liability for construction defects.? Public Citizen call for investigation of HBW and CAS.
E. ARBITRATION REQUIRED AND TEXAS LAW TO APPLY
THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE, LAWS OF THE STATE OF TEXAS. ALL OBLIGATIONS OF THE BUYER AND THE SELLER ARE PERFORMABLE IN THE STATE Of TEXAS. THE BUYER AND SELLER AGREE THAT THE MAXIMUM AMOUNT OF LIABILITY FOR EITHER PARTY SHALL BE THE AMOUNT OF THE PURCHASE PRICE ENTERED AT SECTION; I.A. ABOVE, LESS THE ACTUAL APPRAISED VALUE OF THE PROPERTY. ANY CONTROVERSY OF ANY KIND WHATSOEVER, THAT ARISES OUT OF THIS AGREEMENT, ANY AMENDMENT THERETO, THE PURCHASE OR CONDITION OF THE PROPERTY, OR THE PURCHASE OR CONDITION OF THE HOME, SHALL BE RESOLVED BY BINDING ARBITRATION IN DALLAS COUNTY, TEXAS ACCORDING TO THE RULES AND REGULATIONS OF THE CONSTRUCTION ARBITRATION SERVICE, INC. THE BUYER EXPRESSLY AGREES THAT NO SUIT (OR ANY ADVERSE ACTION WHETHER IN AGENCY, MEDIA, OR INFORMAL) CAN BE FILED IF ARIBITRATION HAS NOT FIRST BEEN COMPLETED. IN ADDITION, THE BUYER AGREES THAT THE BUYER WILL NOT, UNTIL ARBITRATION IS COMPLETED, FILE ANY PROTEST, GRIEVANCE, OR COMPLAINT; OR INITIATE ANY PROCEEDING AGAINST THE SELLER IN ANY OTHER FORUM (INCLUDING THE BETTER BUSINESS BUREAU OR ANY MEDIA ENTITY, TELEVISION OR OTHERWISE) PRIOR TO THE COMPLETION OF ARBITRATION. THE BUYER FURTHER AGREES THAT NO SIGN OR BILLBOARD OR WRITING OR CHART OR DRAWING CONCERNING THE CONDITION OF THE HOME AND/OR PROPERTY SHALL BE ERECTED OR PLACED IN SUCH A WAY THAT IS VISIBLE TO PERSONS PASSING BY THE PROPERTY; UNTIL AFTER ARBITRATION IS COMPLETED. IF THE BUYER VIOLATES THIS PROVISION BY FAILING TO MAKE ARBITRATION THE FULL AND COMPLETE FIRST REMEDY, THE BUYER AGREES THAT IT SHALL PAY THE SELLER A LIQUIDATED DAMAGE OF $2,000.OO. IF THE NEW HOME WARRANTY IS RELEVANT TO THE CONTROVERSY, THE PARTIES EXPRESSLY AGREE THAT THE TERMS OF THE NEW HOME WARRANTY SHALL GOVERN AND PREEMPT THIS AGREEMENT. THE BUYER AND THE SELLER FURTHER AGREE THAT ANY SUCH ARBITRATION MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER SUCH CONTROVERSY ARISES. FAILURE TO INSTITUTE ARBITRATION PROCEEDINGS WITHIN SUCH TIME PERIOD SHALL BE AN ABSOLUTE BAR TO SUCH PROCEDINGS, AND SHALL BE AN ABSOLUTE WAIVER, RELEASE, AND DISCHARGE BY BUYER OF ALL CLAIMS AGAINST SELLER RELATING TO THIS AGREEMENT, ANY AMENDMENT THERETO, OF THE HOME AND PROPERTY. IF EITHER PARTY DISAGREES WITH THE ARBITRATOR'S AWARD, THE ONLY REMEDY FOR EITHER BUYER OR SELLER SHALL BE TO FILE A CAUSE OF ACTION IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS, SHOWING BY CLEAR AND COMPELLING EVIDENCE THAT THE ARBITRATOR IGNORED ALL EVIDENCE IN ITS FAVOR. THE PARTIES AGREE THAT THE MAXIMUM AMOUNT OF LIABILITY FOR EITHER PARTY IN A LAWSUIT SHALL BE THE PURCHASE PRICE LESS THE ACTUAL APPRAISED VALUE OF THE LOT. IF THE PARTY FILING SUIT TO CHALLENGE THE ARBITRATION AWARD IS UNSUCCESSFUL, THE PREVAILING PARTY SHALL BE ENTITLED TO ITS ATTORNEYS' FEES AND COSTS, COURT COSTS, AND A SUM EQUAL TO THE PURCHASE PRICE, OF THE HOME AS LIQLTIDATED DAMAGES; WITHOUT THE NECESSITY OF A JURY INSTRUCTION OR FINDING OF FACT AS TO SAME.
Janet Ahmad, President
HomeOwners for Better Building
San Antonio, Texas
The highest compliment my clients can give me, is the referral of their Friends, Family and Business Associates!
NorCal NACHI Chapter Founder and Chairman.