Posted by
Bill Cherry on Saturday, April 18, 2009 5:28:02 PM
Some say that the reason the Texas Legislature put in place the Deceptive Trade Practices Act (Chapter 17 of the Texas Business and Commerce Code), was to give attorneys an opportunity to sue for big bucks, win big settlements, and pack their pockets with big legal fees. Maybe so.
One thing that the DTPA brought was that it completely wiped out caveat emptor ("let the buyer beware") and replaced it with caveat vendor ("let the seller beware"). And along with it came the inability for either or both parties to waive the rights given them under the DPTA.
In 1995, the Texas Legislature amended the statute so that now consumers CAN waive their rights under the statute. However, "The consumer-buyer must possess equal bargaining power with the seller, and be represented by legal counsel not identified, suggested or selected by the...seller."
So with respect to real estate transactions, property can now be sold "as-is" under certain circumstances. And while the buyer can still file suit against the seller under the DPTA statute, if the "as-is" notice was properly negotiated and agreed to at the time of the sale, conventional wisdom seems to say that the buyer cannot recover any monetary damages.
There is a voluminous article titled "As-Is" in the April 2009 issue of Tierra Grande magazine that real estate professionals as well as propery owners should read. It's written by Judon Fannbrough. Tierra Grande is a publication of the Real Estate Center at Texas A&M University.
It seems to me that it would be appropriate for any and everyone selling and buying property within the areas hit by Hurricane Ike to agree that the purchase is an "As-Is" transaction. Afterall, no one can be sure the totality of damage to any property and further, that the remediation was properly done.
If I were a Realtor practicing in, say, Galveston County, I would advise my listing clients to properly identify their sales as "as-is"
BILL CHERRY, REALTORS
DALLAS - HIGHLAND PARK
214 503-8563