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Proposition 201
Official Title
An Initiative Measure
Homeowners' Bill Of Rights
Text of Proposed Amendment
Be it enacted by the
People of the State of Arizona:
Section 1. Title
This act may be cited
as the "Homeowners' Bill of Rights."
Section 2. Purpose and intent
The People of the State of Arizona hereby make the following findings
and declare their purpose in enacting this Act is as follows:
Arizona's expanding
population needs housing. This should be good housing, using careful design
and high-quality construction materials and techniques. We want our houses to
look good and last for generations to come. Arizona cannot afford to have vast tracts
of poorly-made houses that become "insta-slums".
Good houses, on the other hand, keep their value economically and help
prevent neighborhood decay.
Arizona homeowners are also
entitled to be protected from sharp home sales practices. There are too many
instances of homeowners being pushed into houses and mortgages that they
cannot afford, with disastrous consequences that are now well known. They
have also been victimized by bait-and-switch tactics, deceptive model homes,
hidden charges and finance and insurance schemes riddled with conflicts of
interest.
Current law is
inadequate to deal with these problems. In fact, the Legislature has enacted
laws that served to unduly protect home builders at the expense of
home owners. It has become very difficult for homeowners to take
effective legal action to correct even the most blatant design and
construction defects.
This Homeowners' Bill of
Rights is a law by homeowners for homeowners. It will give homeowners the
ability to get defective homes fixed, to have their homes when built match
what they were led to expect and to better understand financing and insurance
schemes that are offered to them.
Section 3. Title 12,
Chapter 8, Article 14, Arizona Revised Statutes, is amended by striking
certain portions thereof (indicated by strikethroughs) and adding certain
other portions (indicated by underlining) to read:
Article 14 Purchaser
Dwelling Actions HOMEOWNERS' BILL OF RIGHTS
12-1361. Definitions
In this article,
unless the context otherwise requires:
1.
"Association" means either of the following:
(a) The unit owners'
association organized under section 33-1241.
(b) A nonprofit
corporation or unincorporated association of owners created pursuant to a
declaration to own and operate portions of a planned community and which has
the power under the declaration to assess association members to pay the
costs and expenses incurred in the performance of the association's
obligations under the declaration.
2. "Community
documents" means the declaration, bylaws, articles of incorporation, if
any, and rules, if any.
3.
"Dwelling" means a single or multifamily unit designed for
residential use and common areas and improvements that are owned or
maintained by an association or by members of an association. A dwelling
includes the systems, other components and improvements that are part of a
single or multifamily unit at the time of construction.
4. "Dwelling
action" means any action brought by a purchaser against the seller of a
dwelling arising out of or related to the design, construction, condition or
sale of the dwelling.
5. "Multiunit
dwelling action" means a dwelling action brought by an association or by
or on behalf of the owners of five or more individual dwelling units.
6.
"Purchaser" means any person or entity who files a dwelling
action WHO PURCHASES A DWELLING. FOR THE PURPOSES OF THE SECTION OF THIS
ARTICLE PROVIDING FOR DISCLOSURES TO PROSPECTIVE BUYERS OF DWELLINGS,
"PURCHASER" ALSO INCLUDES SUCH PROSPECTIVE BUYERS.
7. "Seller"
means any person, firm, partnership, corporation, association or other
organization that is engaged in the business of designing, constructing or
selling dwellings, including a person, firm, partnership, corporation,
association or organization licensed pursuant to title 32, chapter 20.
12-1362. Dwelling
action; jurisdictional prerequisite; insurance
A. Except with respect
to claims for alleged defects involving an immediate threat to the life or
safety of persons occupying or visiting the dwelling, a purchaser must first
comply with this article before filing a dwelling action.
B. If a seller
presents a notice received pursuant to section 12-1363 to an insurer that has
issued an insurance policy to the seller that covers the seller's liability
arising out of the design, construction or sale of the property that is the
subject of the notice, the insurer must treat the notice as a notice of a
claim subject to the terms and conditions of the policy of insurance. An
insurer is obliged to work cooperatively and in good faith with the insured
seller within the timeframes specified in this article to effectuate the
purpose of this article. Nothing in this subsection otherwise affects the
coverage available under the policy of insurance or creates a cause of action
against an insurer whose actions were reasonable under the circumstances,
notwithstanding its inability to comply with the timeframes specified in
section 12-1363.
12-1363. Notice and
opportunity to repair
A. At least ninety
SIXTY days before filing a dwelling action, the purchaser shall give written
notice by certified mail, return receipt requested, to the seller specifying
in reasonable detail the basis of the dwelling action. The notice in a
multiunit dwelling action involving alleged defects that are substantially
similar in multiple residential units may comply with this section by
providing a reasonably detailed description of the alleged defects in a fair
and representative sample of the affected residential units. For the purposes
of this subsection, "reasonable detail" includes a detailed and
itemized list that describes each alleged defect and the location that each
alleged defect has been observed by the purchaser in each dwelling that is
the subject of the notice MEANS A DESCRIPTION IN ORDINARY, NON-TECHNICAL
LANGUAGE THAT PUTS THE SELLER ON NOTICE OF THE TYPES OF DEFECTS A HOMEOWNER
OF AVERAGE EXPERIENCE WOULD BE EXPECTED TO OBSERVE. ANY PARTICULAR DEFECT THAT
IS REASONABLY ENCOMPASSED IN THE HOMEOWNER'S DESCRIPTION OR THAT IS OR SHOULD
HAVE BEEN FOUND BY A SELLER DURING AN INSPECTION OF THE ALLEGED DEFECTS USING
DUE DILIGENCE SHALL BE DEEMED INCLUDED WITHIN THE PURCHASER'S NOTICE TO THE
SELLER.
B. After receipt of
the notice described in subsection A of this section, the seller may
SHALL CONDUCT A DILIGENT inspectION OF the dwelling
to determine the nature and cause of the alleged defects and the nature and
extent of any repairs or replacements necessary to remedy the alleged
defects. The purchaser shall ensure that the dwelling is made available for
inspection no later than ten days after the purchaser receives the seller's
request for an inspection. The seller shall provide reasonable notice to the
purchaser before conducting the inspection. The inspection shall be conducted
at a reasonable time. The seller may use reasonable measures, including
testing, to determine the nature and cause of the alleged defects and the
nature and extent of any repairs or replacements necessary to remedy the
alleged defects. If the seller conducts testing pursuant to this subsection,
the seller shall restore the dwelling to its condition before the testing.
C. Within sixty
THIRTY days after receipt of the notice described in subsection A of this
section, the seller shall send to the purchaser a good faith written response
to the purchaser's notice by certified mail, return receipt requested. The
response may include an offer to repair or replace any alleged defects, to
have the alleged defects repaired or replaced at the seller's expense or to
provide monetary compensation to the purchaser. The offer shall describe in
reasonable detail all repairs or replacements that the seller is offering to
make or provide to the dwelling and a reasonable estimate of the date by
which the repairs or replacements will be made or monetary compensation will
be provided. THE OFFER MUST INCLUDE AN OFFER TO REPAIR OR REPLACE ANY ALLEGED
DEFECTS AND IF COMPENSATION TO THE PURCHASER IS OFFERED, THE PURCHASER MUST
BE GIVEN THE SOLE POWER TO ELECT COMPENSATION INSTEAD OF REPAIR OR
REPLACEMENT. ANY AND ALL REPAIRS MUST BE MADE BY A CONTRACTOR LICENSED BY THE
STATE WITH NO RECORD OF AN ORDER BY THE REGISTRAR OF CONTRACTORS AGAINST IT
WITHIN THE 10 YEARS PRECEDING THE SELLER'S OFFER. THE SELLER SHALL INCLUDE IN
ITS OFFER OF REPAIR OR REPLACEMENT A CHOICE OF AT LEAST THREE CONTRACTORS FOR
EACH CONTRACT OR SUBCONTRACT FOR THE WORK TO BE DONE, FROM WHICH THE
PURCHASER MAY CHOOSE A CONTRACTOR.
D. If the seller does
not provide a written response to the purchaser's notice within sixty
THIRTY days, the purchaser may file a dwelling action without waiting for the
expiration of ninety SIXTY days as required by subsection A of this
section.
E. Within twenty days
after receipt of the seller's offer made pursuant to subsection C of this
section, the purchaser shall provide a good faith written response. A
purchaser who accepts the seller's offer made pursuant to subsection C of
this section shall do so in writing by certified mail, return receipt
requested. A purchaser who rejects the seller's offer made pursuant to
subsection C of this section shall respond to the seller in writing by
certified mail, return receipt requested. If the seller provides a
specific factual basis for the offer, THE response shall include the
specific factual basis for the purchaser's rejection of the seller's offer
and the purchaser's counteroffer, if any. Within ten days after receipt
of the purchaser's response, the seller may make a best and final offer THAT
CONFORMS TO THE REQUIREMENTS IN SUBSECTION C to the purchaser in writing by
certified mail, return receipt requested.
F. The following are
not admissible in any dwelling action:
1. A purchaser's good
faith notice given to the seller pursuant to subsection A of this section.
2. A seller's good
faith response or offer made pursuant to subsection C of this section.
3. A purchaser's good
faith response made to a seller's offer pursuant to subsection E of this
section.
4. A purchaser's good
faith counteroffer to a seller's offer made pursuant to subsection E of this
section.
5. A seller's good
faith best and final offer made pursuant to subsection E of this section.
G. A purchaser may
amend the notice provided pursuant to subsection A of this section to include
alleged defects identified in good faith after submission of the original
notice during the ninety day notice period. The seller shall have a
reasonable period of time to conduct an inspection, if requested, and
thereafter the parties shall comply with the requirements of subsections B, C
and E of this section for the additional alleged defects identified in
reasonable detail in the notice.
H. A purchaser's
written notice made pursuant to subsection A of this section or an amended
notice made pursuant to subsection G of this section tolls the applicable
statute of limitations, including section 12-552, until FOR ninety
days after the seller receives the notice or for a reasonable period agreed
to in writing by the purchaser and seller.
I. Subject to Arizona
rules of court, during the pendency of a dwelling action the purchaser may
supplement the list of alleged defects to include additional alleged defects
identified in good faith after filing of the original dwelling action that
have been identified in reasonable detail as required by this section. The
court shall provide the seller a reasonable amount of time to inspect the
dwelling to determine the nature and cause of the additional alleged defects
and the nature and extent of any repairs or replacements necessary to remedy
the additional alleged defects. The parties shall comply with the
requirements of subsections B, C and E of this section for the additional
alleged defects identified in reasonable detail in the notice.
J. The service of an
amended notice identifying in reasonable detail the alleged defects during
the pendency of a dwelling action shall relate back to the original notice of
alleged defects for the purpose of tolling applicable statutes of
limitations, including section 12-552.
K. By written
agreement of the seller and purchaser, the time periods provided in this
section may be extended.
L. For the sale of a
dwelling that occurs within the statutory period set forth in section 12-552,
the escrow agent, as defined in section 6-801, shall provide notice to the
purchaser of the provisions of this section and sections 12-1361 and 12-1362.
Nothing in this subsection creates a fiduciary duty or provides any person or
entity with a private right or cause of action or administrative action.
12-1364. Dwelling
action; relief available; attorney fees, costs and expert witness fees
IN ANY CONTESTED
DWELLING ACTION, THE COURT MAY AWARD THE PURCHASER ANY OR ALL OF THE
FOLLOWING RELIEF:
(a) THE PURCHASER'S
OUT-OF-POCKET COSTS TO REPAIR OR REPLACE DEFECTS IN THE DWELLING;
(b) DAMAGES FOR ANY
LOSS OF VALUE IN THE SALE
OF A DWELLING CAUSED BY UNREPAIRED OR UNREPLACED DEFECTS IN THE DWELLING;
(c) INJUNCTIVE OR
OTHER EQUITABLE RELIEF TO RESTRAIN ANY VIOLATION OF THIS ARTICLE OR TO
RESTORE TO THE PURCHASER THE CONDITIONS PROMISED BY THE SELLER;
(d) CONSEQUENTIAL
DAMAGES, INCLUDING COSTS OF RELOCATION IF DEFECTS MAKE A DWELLING
UNINHABITABLE, REASONABLY-DOCUMENTED TIME MISSED FROM WORK DUE TO DEALING
WITH DEFECTS, AND OTHER DAMAGES THAT WERE REASONABLY FORESEEABLE; AND
(e) COMPENSATORY
DAMAGES FOR UNREASONABLE FAILURE OF SELLER TO REPAIR OR COMPENSATE.
In any contested
dwelling action, IF THE PURCHASER IS AWARDED ANY RELIEF, the court shall
award the successful party PURCHASER reasonable attorney fees,
reasonable expert witness fees and taxable costs. If the seller's offer,
including any best and final offer, is rejected and the judgment finally
obtained is less than or less favorable to the purchaser than the offer or
best and final offer, the seller is deemed to be the successful party from
the date of the offer or best and final offer. If the judgment finally
obtained is more favorable to the purchaser than the seller's offer or best
and final offer, the purchaser is deemed to be the successful party from the
date of the offer or best and final offer.NO CONTRACT FOR THE
PURCHASE OF A DWELLING MAY REQUIRE THE PURCHASER TO PAY THE ATTORNEY OR
EXPERT FEES OF THE SELLER UNDER ANY CIRCUMSTANCES. This section shall not
be construed as altering, prohibiting or restricting present or future
contracts or statutes that may provide for attorney fees.
12-1365. Notification;
right to file a complaint with the registrar of contractors
A. A written contract
for the sale of a newly constructed dwelling between a buyer of a newly
constructed dwelling and the seller responsible for the original construction
of the dwelling shall contain, or provide separate notice of, the following provisionS:
Under Arizona Revised
Statutes section 32-1155, a buyer of a dwelling has the right to file a
written complaint against the homebuilder with the Arizona registrar of
contractors within two years of the commission of an act in violation of
Arizona Revised Statutes section 32-1154, subsection A, INCLUDING SUCH THINGS
AS ABANDONMENT OF A CONTRACT OR REFUSAL TO PERFORM, FAILURE TO COMPLETE A
PROJECT FOR THE AGREED PRICE, DEPARTURE FROM OR DISREGARD OF PLANS OR
BUILDING CODES, OR WRONGFUL OR FRAUDULENT ACTS.
B. The notice required
in subsection A of this section shall be prominently displayed and appear in
at least ten point bold type. THE NOTICE SHALL INCLUDE THE CURRENT ADDRESS,
TELEPHONE NUMBER AND WEBSITE ADDRESS OF THE REGISTRAR OF CONTRACTORS.
C. The buyer of the
dwelling is not deemed to have received the notice required pursuant to
subsection A of this section, unless the buyer initials the notice provision.
12-1365.01. PROTECTION
OF HOMEOWNERS; POTENTIAL CONFLICTS OF INTEREST BETWEEN SELLERS AND FINANCIAL
INSTITUTIONS
A. EVERY SELLER OF A
DWELLING MUST INCLUDE IN THE PURCHASE PRICE OF THE DWELLING WITHOUT
ADDITIONAL OR SEPARATE CHARGE A WARRANTY OF THE MATERIALS AND WORKMANSHIP OF
THE DWELLING EFFECTIVE FOR AT LEAST TEN YEARS FROM THE DATE OF PURCHASE. THE
WARRANTY SHALL COVER THE ORIGINAL PURCHASER AND ALL SUBSEQUENT PURCHASERS
WITHIN TEN YEARS OF THE DATE OF THE ORIGINAL PURCHASE.
B. A CONTRACT
DESCRIBED IN SUBSECTION A OF SECTION 12-1365 SHALL ALSO CONTAIN CLEAR,
COMPLETE AND ACCURATE DISCLOSURE OF ALL ARRANGEMENTS WITH FINANCIAL
INSTITUTION PROVIDING MORTGAGE FINANCING, TITLE INSURANCE OR PROPERTY AND
CASUALTY INSURANCE OFFERED BY OR THROUGH THE SELLER, INCLUDING ANY COMMON
OWNERSHIP OR CONTROL, ANY AND ALL FEES, COMMISSIONS, REBATES, REFUNDS OR
PAYMENTS OF ANY SORT FROM INSTITUTION TO THE SELLER THAT ARE DEPENDENT TO ANY
DEGREE ON THE BUYER ELECTING TO OBTAIN ALL OR ANY PART OF THE FINANCING FOR
PURCHASE OF THE DWELLING FROM THE INSTITUTION, AND WHETHER ANY MORTGAGE
ARRANGED BY THE SELLER WILL BE HELD BY SELLER OR THE FINANCIAL INSTITUTION OR
IS INTENDED TO BE SOLD TO OTHER PARTIES.
C. ALL FIXTURES OR
EQUIPMENT SHOWN IN A SELLER'S MODEL HOMES MUST BE INCLUDED IN THE BASE
PURCHASE PRICE ADVERTISED. ANY SUBSTITUTE OR ADDITIONAL FIXTURES OR EQUIPMENT
MUST BE SEPARATELY PRICED AND THE PRICES CLEARLY, COMPLETELY AND ACCURATELY
DISCLOSED TO BUYERS
D. NO SELLER MAY
REQUIRE A DEPOSIT FOR A CONTRACT TO SELL A DWELLING UNLESS THE CONTRACT
PROVIDES THAT THE PURCHASER MAY CANCEL THE CONTRACT WITHIN 100 DAYS AND
RECEIVE A REFUND OF NO LESS THAN 95% OF THE DEPOSIT.
E. NO SELLER MAY
COMPLETE A MORTGAGE FINANCING APPLICATION FOR A DWELLING FALSELY OR AID OR
ABET ANOTHER TO DO SO.
F. ANY WAIVER BY A
PURCHASER BY ANY OR ALL OF THE PROVISIONS OF THIS ARTICLE SHALL BE DEEMED
CONTRARY TO PUBLIC POLICY AND SHALL BE VOID AND UNENFORCEABLE. ANY ATTEMPTS
BY SELLER TO HAVE A PURCHASER WAIVE RIGHTS GIVEN BY THIS ARTICLE SHALL
CONSTITUTE A SEPARATE VIOLATION OF THIS ARTICLE. A SELLER MAY NOT VOID, ALTER
OR IMPAIR ANY WARRANTY BECAUSE A BUYER EXERCISES ANY RIGHTS UNDER THIS
ARTICLE.
12-1365.02. Applicability;
claims and actions
A purchaser may bring
an action against a seller for violation of section 12-1365.01 and shall be
entitled to recover in such action ANY OR ALL OF THE FOLLOWING RELIEF:
(a) INJUNCTIVE OR
OTHER EQUITABLE RELIEF TO RESTRAIN ANY VIOLATION OF SECTION 12-1365.01;
(b) RESCISSION OF ANY
CONTRACT TO PURCHASE A DWELLING MADE IN VIOLATION OF SECTION 12-1365.01;
(c) ANY ACTUAL DAMAGES
CAUSED BY ANY VIOLATION OF SECTION 12-1365.01
(d) COMPENSATORY
DAMAGES FOR WILLFUL VIOLATION OF SECTION 12-1365.01; AND
(e) REASONABLE
ATTORNEY FEES, REASONABLE EXPERT WITNESS FEES AND TAXABLE COSTS.
12-1366. Applicability;
claims and actions
A. Sections 12-1362
through 12-1364 OF this article does not apply:
1. If a contract for
the sale of a dwelling or an association's community documents contain
commercially reasonable alternative dispute resolution procedures. If the
contract for the sale of a dwelling contains the procedures, the procedures
shall conspicuously appear in the contract in bold and capital letters. If
the contract for sale of a dwelling contains the procedures, a disclosure
statement in at least twelve point font, bold and capital letters shall
appear on the face of the contract and shall describe the location of the
alternative dispute resolution procedures within the contract.
2 1
. To personal injury claims.
3 2
. To death claims.
4 3
. To claims for damage to property other than a dwelling.
5 4
. To common law fraud claims.
6 5
. To proceedings brought pursuant to title 32, chapter 10.
7 6
. To claims solely seeking recovery of monies expended for repairs to
alleged defects that have been repaired by the purchaser.
B. A dwelling action
brought by an association is also subject to title 33, chapter 18.
Section 4. Title 12,
Chapter 5, Article 3, Section 12-552, Arizona Revised Statutes, is amended by
striking certain portions thereof (indicated by strikethroughs) and adding
certain other portions (indicated by underlining) to read:
12-552. Actions
involving development of real property design, engineering and construction
of improvements
A. Notwithstanding any
other statute, no action or arbitration based in contract may be instituted
or maintained against a person who develops or develops and sells real
property, or performs or furnishes the design, specifications, surveying,
planning, supervision, testing, construction or observation of construction
of an improvement to real property more than eight TEN years after
substantial completion of the improvement to real property.
B. Notwithstanding subsection
A of this section, in the case of injury to real property or an improvement
to real property, if the injury occurred during the eighth TENTH year
after the substantial completion, or, in the case of a latent defect, was not
discovered until the eighth TENTH year after substantial completion,
an action to recover damages for injury to the real property may be brought
within one year after the date on which the injury to real property or an
improvement to real property occurred or a latent defect was discovered, but
in no event may an action be brought more than nine ELEVEN years after
the substantial completion of the improvement.
C. The limitations in
subsections A and B of this section include any action based on implied
warranty arising out of the contract or the construction, including implied
warranties of habitability, fitness or workmanship.
D. Nothing in this
section applies to actions for personal injury or death nor shall this
section operate to shorten the period of warranty provided in an express
written warranty.
E. For the purposes of
subsections A, B and C of this section, an improvement to real property is
considered substantially complete when any of the following first occurs:
1. It is first used by
the owner or occupant of the improvement.
2. It is first
available for use after having been completed according to the contract or
agreement covering the improvement, including agreed changes to the contract
or agreement.
3. Final inspection,
if required, by the governmental body which issued the building permit for
the improvement.
F. In this section an
action based in contract is an action based on a written real estate
contract, sales agreement, construction agreement, conveyance or written
agreement for construction or for the services set forth in subsection A of
this section. This section shall not be construed to extend the period
prescribed by the laws of this state for bringing any action. If a shorter
period of limitation is prescribed for a specific action, the shorter period
governs.
G. With respect to an
improvement to real property that was substantially complete on or before
September 15, 1989, the eight and nine-year periods established in
subsections A and B of this section shall begin to run on September 15, 1989.
Notwithstanding the provisions of subsection E of this section and section
12-505, subsection A, this subsection applies to claims that accrued before
the effective date of this amendment to this section.
Section 5. Severability
If any part of this
law, or the application of the law to any person or circumstance, is held
invalid, the remainder of this law, including the application of such part to
other persons or circumstances, shall not be affected by such a holding and
shall continue in full force and effect. To this end, the parts of this law
are severable.
Section 6. Effective Date
This article shall take effect upon enactment and shall apply to
all causes of action whenever accrued that were not time-barred as of the
date of enactment, provided that the provisions of subsection C of section
12-1362, the amendments to section 12-1365 and sections 12-1365.01 and
12-1365.02 shall only operate prospectively from the date of enactment.
Analysis
By Legislative Council
Current law provides
an alternative process for purchasers and contractors or sellers to resolve
issues related to the design, construction, condition or sale of a dwelling
prior to filing a lawsuit. Proposition 201 makes mandatory changes to the
legal procedures for any purchaser dwelling action and for the time to sue on
any improvements for real property:
1. Expands existing
law to grant "prospective buyers" the rights to sue over a dwelling
action.
2. Prohibits sellers
or purchasers from agreeing to or allowing any "reasonable alternative
dispute resolution" procedures in sales contracts.
3. A purchaser would
be required to give 60 days' notice, instead of 90 days' notice, to a seller
of the alleged defects before filing a court action against the seller. The
notice must currently contain a "detailed and itemized" list of
alleged defects. Proposition 201 replaces that standard with a requirement
that the notice contain a description in "ordinary, non-technical
terms" of defects that a purchaser of "average experience" would
be expected to observe and any defects that should have been found by the
seller shall be deemed a part of the notice.
4. After receiving
notice of alleged defects, the measure would require rather than allow the
seller to conduct an inspection of the dwelling to determine the cause of the
alleged defects and what repairs or replacements would be necessary, if any,
to remedy the alleged defects.
5. The seller would be
required to send the purchaser a written response within 30 days, instead of
60 days, after receiving a notice from the purchaser of the purchaser's
intent to file a court action against the seller. If an offer to repair or
replace any alleged defects includes an offer of compensation, the purchaser
would be given the sole power to choose compensation instead of repair or
replacement.
6. A seller would be
required to hire a qualified licensed contractor to complete any and all
repairs to the dwelling. In order for the licensed contractor to be
qualified, the registrar of contractors could not have had an order against
the licensed contractor in the preceding ten years.
7. The seller would be
required to provide the purchaser a choice of at least three qualified
licensed contractors for each contract or subcontract for repair or
replacement. The right of any seller to receive attorney and expert witness
fees and costs even if the seller is the successful party is eliminated.
8. A contract for the
purchase of a dwelling could not require the purchaser to pay the attorney or
expert fees of the seller under any circumstances. If a purchaser is awarded
any relief the court must also award attorney and expert witness fees, plus
taxable costs.
9. The purchase of a
dwelling would include a ten year warranty of the materials and workmanship.
This warranty would transfer to any subsequent purchasers within the ten year
warranty period.
10. The contract for
the sale of a newly constructed dwelling would need to include disclosures of
a seller's financial relationships with any financial institution, including
arrangements for mortgage financing, title insurance, or property and
casualty insurance, ownership interests in the financial institution, and any
commissions or payments the seller may receive as a result of the transaction
with the buyer. This disclosure would also need to indicate whether a
mortgage arranged by the seller will be held by the seller, the financial
institution or is intended to be sold to other parties. A purchaser would be
allowed to sue the seller for violating these disclosure requirements.
11. A seller would not
be allowed to require a deposit for a contract to sell a dwelling unless the
contract allowed the purchaser to cancel the contract within 100 days and
receive a refund of at least ninety-five per cent of the deposit.
12. The advertised
base price of a home would need to include all fixtures or equipment shown in
a seller's model home, unless the fixtures or equipment are priced separately
and are clearly and accurately disclosed to prospective buyers.
13. The time period in
which a person can file an action against any person
who makes improvements to any real property or dwelling, including
commercial, industrial, raw land and retail would be extended to ten years
instead of eight years.
14. An owner of a
residential dwelling who is successful in a dwelling action against the
seller would be able to receive damages such as out-of-pocket expenses for
repairing and replacing defects, costs of relocation if defects make a
dwelling uninhabitable, reimbursement for reasonably-documented time missed
from work due to dealing with defects and compensation for a seller's
unreasonable failure to repair the defects, consequential damages and other
damages that were reasonably foreseeable.
Fiscal
Impact Statement
State law requires the
Joint Legislative Budget Committee (JLBC) Staff to prepare a summary of the
fiscal impact of certain ballot measures. Proposition 201 may result in an
increase in the number of complaints filed with the Registrar of Contractors
and the number of dwelling actions filed in court. The proposition would also
require the Registrar of Contractors to update its online database of
contractors to have a 10-year disciplinary history. The proposition also
contains provisions that may result in an increased workload for the
Department of Financial Institutions and the Department of Real Estate. It is
difficult to predict in advance the impact of the proposition on these
entities' workloads.
Arguments
"For" Proposition 201
If you
think a new home should come with a warranty at least as good as a car...
Vote Yes.
A home is our family's biggest investment. The Homeowners Bill
of Rights will give homeowners the rights they need.
A 10-year warranty on new homes... Vote Yes.
Make homebuilders correct construction defects or compensate the
homeowner... Vote Yes.
Guarantee that homeowners can participate in choosing
contractors to do repair work... Vote Yes.
Only contractors with 10-year clean records can be used for
corrections... Vote Yes.
Make builders reveal their relationships with financial institutions...
Vote Yes.
Make model homes reflect what is actually for sale... Vote Yes.
Give buyers the right to cancel within 100 days and get back
most of their deposits... Vote Yes.
Give homeowners good ways to enforce their rights in court,
including money for the hardship caused by home defects... Vote Yes.
And voting Yes will keep current law to screen out frivolous lawsuits .
The people of Arizona
can vote Yes to balance legal rights between homebuilders and their
customers. The politicians changed the law and denied buyers reasonable
protection against deceptive sales practices and construction defects.
Individual homeowners and real estate agents are not subject to
this law. Only the homebuilders are covered.
The giant home building corporations oppose this law. But they
made huge profits during the last boom and can easily afford to build and
sell homes fairly. Homeowners can't afford the way the system is stacked
against them. It's time to make things right.
Vote Yes to protect Arizona
homeowners!
Dion Abril, Chairman, Homeowners Bill of Rights Committee, Tolleson
Donald Latham, Treasurer, Homeowners
Bill of Rights Committee, Phoenix
Paid for by
"Homeowners'Bill of Rights Committee"
Why should you ignore the opposition's
arguments and Vote for the Homeowners' Bill of Rights? My wife and I had
talked about building a new home for several years. 2005 was the year we
decided we would do it. We contracted with Engle who emphasized (or implied)
quality.
Buying this Engle
house has left my family shaken and much poorer from the experience. We are
stuck in this defective house and we hope our story can help prevent others
from sharing our nightmare. I hope you never see the pain in your wife's face
when the truth is discovered.
We found many defects;
dangerous natural gas leaks, structural problems, leaky air conditioner
ducts, mold, large holes in outside walls (bugs!), rain water poured out from
inside walls, even electrocution hazards and carbon monoxide.
The builder was made
aware of serious problems and did nothing about them. When the builder told
us of other neighbors who also had many problems they described them as
"too picky" or a pain in the butt. All we expected is what we paid
for and what we were promised. We had to spend $20,000 on experts to prove
our concerns were real while Engle Homes used the best attorneys to evade
responsibility or prove us wrong. Our conscience will not allow us to pass
these problems on to an unsuspecting buyer, all we
can do is warn you.
We thought we had a warranty
but our warranty doesn't work for anyone but the builder. There is no
accountability.
I hope that you, your
family or your grandchildren will experience the American dream of owning
their own home. Two and a half years later we still have an unfixed lemon.
Please vote Yes to protect your
family and others.
Terry Landa, Goodyear
Support
Homeowners Bill of Rights--Arizona
Needs a Unionized Construction Industry
I hear opponents to Prop. 201 say that this will lead Arizona towards having
a unionized construction industry. I say what's wrong with that! Arizona's construction
industry should be all union, and if it takes an initiative to accomplish
this, so be it.
Our Arizona Legislature and Governor have let us down by not
pushing for more laws that promote increased collective bargaining and union
organizing. As we speak, the federal government is on the verge of passing
the Free Choice Act, a needed measure that would eliminate secret ballots in
order to make it easier for workers to form unions. The same proactive steps
need to be taken here in Arizona,
and Prop. 201 is a good first step.
So I say to the Sheet Metal International Association and
AFL-CIO: Thank You! Every Arizona
worker is in your debt. Hopefully with your continued efforts, we will be
able to push for new laws and initiatives that improve the workers plight and
punish the business class for everything they have taken from us.
Josh Stockton, Mesa
Please
support Unions by voting for Prop. 201
As a longtime supporter of the Sheet Metal Union and the
AFL-CIO, I wholeheartedly endorse their efforts to pass Prop. 201. It's about
time that the unions start stepping up and putting more pressure on the
construction industry to unionize.
Prop. 201 does a couple of things to
help increase their membership. First, it limits the choices on what
subcontractors consumers can use, improving the odds
that union only labor will be used. Secondly, it sets up several new rules,
regulations, and requirements that builders must meet, several of which that
will surely hamper their ability to operate without union labor.
The only unfortunate thing about this initiative is that it took
money from an out of state group to finally put the construction industry in
its place. Thankfully with the housing market the way it is, this is the
perfect time to push for laws that will tip the balance of power towards
union shops. I just hope we don't blow this opportunity.
I ask every Arizonan that cares about the unions in this state
to join me in voting yes on Prop. 201.
David Snyder, Mesa
Gain leverage over Home Builders by
Supporting Prop. 201
Every Arizonan needs to support Prop. 201, a quality initiative that will
help increase the leverage prospective buyers and current home owners have
when dealing with home builders.
Moving here from California, I couldn't
believe there wasn't any laws in place that I could use to pressure builders
into offering me a better price or more upgrades on my home. Fortunately,
Prop. 201 opens the litigation statutes up to
prospective buyers as well, so now I can contact my attorney if I believe a
builder isn't offering me a fair price.
Another good provision
in Prop. 201 is that it prohibits a home buyer from
agreeing to any form of mediation or arbitration process with a builder,
meaning every dispute has to be settled in court. It's a great way to stick
it to builders, especially since this initiative prohibits home builders from
recovering court costs.
With unfair laws such
as allowing arbitration, letting builders collect court cost if they win, and
prohibiting prospective buyers from filing lawsuits against builders, it's
clear that Arizona's
home building statutes need an upgrade. That is why I support Prop. 201, and I hope every voter joins me in doing so.
Nate Porter, Mesa
Help increase litigation payouts by
supporting Prop. 201
Coming from a family
of trial lawyers, I was thrilled to see the Sheet Metal Union put Prop. 201
on the ballot. If you don't know, under current law if you sue a builder for
an alleged construction defect and the claim turns out to be frivolous, the
builder is eligible to recover reasonable attorney fees as awarded by the
court. The problem with this provision is that it discourages large scale
class action lawsuits against builders, which are needed to intimidate them
into settling out of court.
But now with Prop.
201, home builders will no longer be eligible to recover court costs, meaning
attorneys will be able to file as many lawsuits as they want with no fear of
actually having to pay for the litigation. The result is that buffer claims,
a much needed component to help expand the size and scope of construction
defect lawsuits, can be included as a way to increase settlement payouts.
Some people try to
give trial attorneys a bad name, but using the court process is a legitimate
and smart way to make money. I believe that the legal process needs to utilized to its fullest extent, and that is why come
November, please support Prop. 201.
Beau Flahart, Gilbert
The Homeowners Bill of Rights is based
on the notion that if you buy a house and it turns out to be poorly built you
should be able to do something about it. It is based on the notion that
consumers should get what they pay for and that sellers should be held
accountable for the quality of their product. It is based on the notion that
transparency and full disclosure is a consumer right.
For too long, too many
Arizona
homeowners have watched their American dream of home ownership turn into a
nightmare. Attempts to get construction defects repaired have resulted in
months and often years of denial and delay on the part of builders and
sellers. Sellers have been able to hide behind confusing legal jargon and
requirements that prevent ordinary consumers from being able to get their
concerns addressed. Instead of sellers backing their product, buyers are
threatened with having to pay the attorney's fees and court costs of the very
ones who sold them a defective product in the first place.
Shelter is a basic
human need; it is not an option. In a place like Arizona, with its extreme weather, quality
is essential and defects need to be addressed in a timely way. People who
spend their hard earned, life savings in the purchase of shelter deserve a
reasonable course of action if their purchase turns out to be problematic.
The Homeowners' Bill
of Rights uses ordinary, non-technical language that anyone can understand.
It requires that sellers do the same in their dealings with purchasers.
Should Arizona
consumers settle for anything less?
Vote for Justice. Vote
Yes on Prop 201
Rev. Catherine
"Trina" Zelle, Director, Interfaith
Worker Justice of Arizona, Tempe
Walter Henyard,
Vice President, Interfaith Worker Justice of Arizona,
East Mesa
Robert Smith, President, Interfaith
Worker Justice of Arizona, Mesa
Paid for by
"Interfaith Worker Justice"
The Air Conditioning Excellence
Coalition ( www.acecoalition.org/) is a group of
industry minded professionals who volunteer their time and effort to promote
issues of quality, training and energy conservation. In hundreds of free
inspections to new homeowners we routinely see serious multiple construction
defects.
There are thousands of
cases across Arizona
where homebuyers are complaining about the construction of their new homes
including faulty electrical wiring, bad plumbing, and foundational problems.
This initiative overturns a law passed in 2002 supported by homebuilders,
contractors and pro-industry lobbyists to limit construction-related lawsuits
regarding shoddy construction. This law simply gives people the right to do
something about it.
Opponents of this
measure claim it would make houses unaffordable but warranties do not control
the sales price of new houses; supply and demand sets prices. We need to do
everything we can to protect the value of our homes. We need to protect our
home value by protecting against faulty construction. Why are some
homebuilders often antagonistic to third party inspectors even those who are
non-profit?
Buying a new home is a
huge investment. It is only fair to ask homebuilders to stand by the quality
of their homes and provide a warranty to the buyers of new homes. A 10-year
warranty is reasonable since most people are taking out a 30-year mortgage.
It also fully supports the common sense principle that builders and
contractors should stand behind their products and be held accountable if
they build a shoddy or substandard product.
There is no reason why
homebuilders should oppose providing a warranty on homes unless they are
trying to cut corners or use defective materials. Others seek to make it a
union or non-union issue: this initiative would only reward contractors who
did quality work regardless of union status.
Vote Yes!
Edward B. Armour, Director, ACE Coalition, Gilbert
The Arizona Advocacy Network supports
the Homeowners' Bill of Rights and urges voters to support it because it will
ensure that home buyers and home owners have a stronger position in disputes
with home builders, including a ten year warranty on new homes, the right to
choose contractors for repair work, and the right to sue homebuilders for
deceptive sales practices and construction defects without the threat of
having to pay builders' attorney fees and expert witness fees.
In 2002 the home
building industry secured legislation that radically changed the rights of home
buyers in favor of builders. This initiative levels the playing field.
New home buyers should
have a reasonable expectation that the construction on their home is sound
and the house is safe for their families. Proposition 201 will protect home
buyers from the worst actors in the home building industry and hold the
builders accountable for the quality of their work.
The Arizona Advocacy
Network promotes social, economic, racial and environmental justice by
educating voters on ballot measures and by advocating for consumer protection
and preservation of a civil justice system in which average people can be
assured of fairness in dealing with corporate and business interests. We urge
you to Vote Yes on Proposition 201.
Michael J. Valder, President, Arizona
Advocacy Network, Phoenix
Eric Ehst,
Treasurer, Arizona Advocacy Network, Phoenix
Paid for by
"Arizona
Advocacy Network"
Homeowners'
Bill of Rights
Arizona homeowners are entitled
to live and raise their families in quality-built homes that will last for
generations. Prop 201 holds contractors accountable and protects homeowners
against substandard construction practices.
Many contractors emphasize profitability over quality, seeking
to reduce construction costs and increase profits while selling homes at top
dollar. As a result, vast tracts of homes suffer from construction defects
caused by substandard construction practices. The owners of these homes are
left with the grim reality of pursuing a potentially cost prohibitive lawsuit
or facing substantial repair costs and unreasonable maintenance burdens on
nearly new homes. Builders should be held accountable for the quality of
their construction.
Current laws "protecting" homeowners were created by
builders, to protect builders. These laws set unreasonable burdens, expose
homeowners to substantial costs, and effectively prohibit many homeowners
from holding their builders accountable for shoddy construction. Arizona's citizens,
not builders, should create the laws that protect the home buying public.
Prop 201 levels the playing field between homeowners and large
corporate homebuilders. Prop 201 eliminates many of the current burdens that
protect homebuilders. Should a builder refuse to correct substandard
construction, the proposition requires the builder to pay a
successful homeowners' attorneys' fees and costs should a legal action
be required. At the same time, Prop 201 eliminates a homeowners
potential liability for paying the builders' substantial attorneys' fees
should the builder use its financial strength to spend the homeowner into
submission. Prop 201 also extends the period of time from 8 years to 10 years
within which a homeowner can hold their builder accountable for faulty
construction.
Homeowners have always paid for quality homes, now is the time
to hold homebuilders responsible for providing quality homes that will last
for generations to come.
Douglas Lusson, Chairman, Coalition for Better Construction, Phoenix
John Chaix,
Co-Chairman, Coalition for Better Construction, Phoenix
Paid for by "Coalition for Better
Construction"
Dear Arizona Voter,
The Arizona Alliance
for Retired Americans urges your support of Prop 201, the Homeowners Bill of
Rights initiative. Over the past several years, Arizona has seen an influx of new
residents and the homebuilder industry has met the demand and benefited from
that growth. Yet, ever since the laws were changed in 2002, homebuyers have
seen their rights as new homeowners decrease. Too often, new homeowners
experience questionable sales tactics, "bait and switch" standard
versus custom features, and upon move-in, dozens of construction defects.
No more is this
present than in the senior retirement communities in Arizona. Retirees purchase their
"dream" home in these master planned retirement communities and
find their dreams turning into nightmares. Seniors encounter construction
defects that they may not be able to fix themselves due to health conditions
or being on a fixed income. When seeking repairs from the builder, they are
met with hostility and are forced to seek rectification through the legal
process, all at the expense of their hard-earned retirement income.
By voting yes on Prop
201 the Homeowner's Bill of Rights initiative, we remove the advantage the
Legislature gave the homebuilding companies, and allow home buyers a fair
hearing on a level playing field.
John Campbell, First
Vice President, Arizona Alliance
for Retired Americans, Glendale
Bill Engler,
Second Vice President, Arizona Alliance for Retired
Americans, Anthem
Paid for by
"Arizona Alliance for Retired Americans"
One of the largest investments a
working family will make is their home. Many hard working Arizonans scrimp
and save for years in order to have their piece of the American Dream for
their families. These dreams can quickly be shattered by the realization of
faulty construction and defects and no real process to remedy the situation.
As families move into
these homes there are too many times their dreams become a nightmare.
Foundations start to crack, shoddy roofs bring leaks which turn to mold and
faulty wiring makes the simple flip of a light switch a potential hazard.
These homeowners do everything possible to correct the problems. They make
calls, fill out paperwork and experience a never ending maze of bureaucracy
in their attempts to have a livable home for their family. Time and time
again the Homebuilders fail to meet their responsibilities for their faulty
construction and defects.
In 2002, lobbyists for
the Homebuilders convinced the Arizona Legislature to pass legislation, to
radically change the rights of homeowners in favor of the Homebuilders. It
stripped out most of the basic consumer protections that should be part of
every purchase made by working families.
This initiative when
passed will restore the rights of these families to have their concerns and
complaints responded to in a timely manner and to have the repairs done on
their homes by reputable contractors. It will put an end to deceptive sales
tactics and require the Homebuilders to be forthright with information needed
by working families when making their decision to purchase.
The Homeowners Bill of
Rights will reverse this trend and it will put in place safeguards to protect
a homeowner's investment.
Vote Yes on Prop 201
to protect the American Dream.
Vote Yes on the
Homeowner Bill of Rights.
Rebekah Friend,
Secretary/Treasurer, Arizona AFL-CIO, Mesa
Martin "Buzz" Murphy,
President, Arizona AFL-CIO, Glendale
Paid for by
"Arizona
AFL-CIO"
Arguments
"Against" Proposition 201
As
Chairman of Arizonan's Against Lawsuit Abuse (ALAW), I would like to
encourage the voters of Arizona
to reject Prop 201. ALAW fights against abuses in our legal systems that
create inequities in our system which raise the legal costs for consumers.
This proposal creates a mandatory and complex litigation process
that that will cause unnecessary lawsuits without resolving homeowner's
problems.
It prohibits two parties from agreeing to resolve their disputes
without going to court and hiring attorneys.
It forbids the seller of new homes from recovering any
attorney's fees even if the case was frivolous or if they win.
It allows prospective buyers to file lawsuits so you do not even
have to own a home to file suit.
It assures that all disputes, either large or small, go to court
raising costs for everyone.
If these disputes go to court, it assures us that homeowners
will wait years until their issue is resolved or their homes get fixed.
Unlike any issue ALAW has ever seen, this is an unprecedented
attempt of alter our legal system in the favor of litigation over mediation.
This is an unnecessary step when we have legal procedures in place today that
allow for mediation while preserving consumers right to litigation.
As many consumers understand, when you create a complicated and
unfair legal process that requires the use of lawyers, it creates higher
costs for consumers. We oppose any efforts to increase costs to consumer
during these difficult economic times.
Vote No On Prop 201
Spencer Kamps, Chairman, Arizonan's Against Lawsuit Abuse, Phoenix
Although the title of this proposition
says homeowners "bill" of rights, the only "
bill" you will see is an increase in your legal "bills"
if this passes. The title is misleading and affords homeowners fewer rights
than the laws that are currently in place in Arizona.
In 2003, I
successfully sponsored the "Notice to Cure" legislation. It was a
good law then and it is a good law now. The goal was to resolve disputes
quickly so people could get on with their lives. The law is working well.
Prior to its passage,
most construction defect claims ended up in court where builders and
homeowners spent years and thousands of dollars trying to figure out who was
at fault.
Under the "Notice
to Cure" law, a fair and reasonable process was established. The
homeowner notifies the builder that there is a defect and the builder has
ninety days to fix the problem. In addition, there is an alternative
mediation process that homeowners can take advantage of to reach quick
settlements without going to court. This saves time and money.
With Proposition 201,
these provisions are gone. Litigation is the only option. To makes matters
even worse, they eliminate the "Loser Pays Court Fees" statutes.
Without that statute, lawyers are encouraged to go to court. Everyone loses
except the attorneys.
The "Notice to
Cure" statute is good public policy. Consumer satisfaction is at an all
time high while attorney payouts are at an all time low. More importantly,
people can get on with their lives and enjoy their new homes.
Don't let out- of
-state groups tear down solid Arizona
laws. Vote "no" on proposition 201.
Senator Barbara Leff, District 11, Phoenix
Paid for by
"Barbara Leff"
Members of the Home Builders
Association of Central Arizona pride themselves in taking care of their
homebuyers. Last year, members of the Association were at the top of the JD
Powers ratings for customer satisfaction. We want to keep it that way!
Prop. 201 will prevent
homebuilders from working with their customers to resolve problems. Instead of
having the ability to repair items or arbitrate any disputes, homebuyers will
be forced to go to court. This proposed "litigation only" solution
to problem solving does nothing more than line the pockets of trial attorneys
and delay homeowners from getting problems addressed.
Over the last ten
years, the State Legislature has enacted a fair and reasonable process for
homebuyers and homebuilders to resolve disputes. Prop. 201 throws
out existing law and forces the wishes of an out-of-state trial attorney and
his union supporters upon all homebuyers in Arizona.
The only people who
win in Prop. 201 are the lawyers! Let's keep the homebuyers and homebuilders
working together to keep housing affordable. Vote "No" on Prop.
201.
Carl Mulac, Chairman of the Board, Home Builders Association
of Central Arizona, Phoenix
Connie Wilhelm, President, Home
Builders Association of Central Arizona, Phoenix
Paid for by "Home Builders Association of Central
Arizona"
Arizona Chamber Urges No Vote on
Prop 201
The Arizona Chamber of
Commerce and Industry opposes Prop 201, an unnecessary initiative that will
encourage litigation and increase costs for both consumers and home builders.
Current law already provides a process for home owners and home builders to
resolve construction related disputes prior to filing any lawsuits. These
laws have been in place for years and have resulted in increased consumer
satisfaction, reduced litigation costs, and lower insurance premiums for home
builders and homeowners alike.
Prop 201 turns this
reasonable process on its head by making two fundamental distortions to this
law. First, Prop 201 will prohibit builders from being awarded attorney fees
even if they are the prevailing party in a lawsuit. Arizona has had a long
standing legal practice of "loser pays" when it comes to
construction defect claims, especially because it encourages builders to
quickly resolve disputes and discourages trial attorneys from filing
frivolous claims. By dismantling loser pays, innocent builders will have
little protection under the law and emboldened litigators will have little
incentive to keep costs down.
The second distortion
made by Prop 201 is that it prohibits home buyers from entering into
alternative dispute and resolution agreements with home builders. Eliminating
this crucial alternative for resolving disagreements out of court can only
mean one thing: the proponents of this initiative want you to settle disputes
in court. The Arizona Chamber has always been a strong proponent in the
freedom to contract, especially when it comes to discouraging lawsuits.
The proponents of this
initiative will try to argue that Prop 201 is good for consumers. Don't be
deceived. Prop 201 is a boon for trial lawyers, and does little to aid home
buyers or the construction industry. Come November, Vote No on Prop 201.
Glenn Hamer, President & CEO, Arizona
Chamber of Commerce and Industry, Phoenix
Don Robinson, Chairman-Elect, Arizona Chamber of Commerce and Industry, Phoenix
Paid for by
"Arizona
Chamber of Commerce and Industry"
Arguments "Against" Homeowner
Bill of Rights
ICSC
prides itself on promoting good public policy in that State of Arizona.
Prop 201 should not be adopted by the voters for the following
reasons.
It creates a fictitious problem that will only benefit contingency
fee lawyers.
This is a misguided effort by the unions to change Arizona's Right to
Work status and to unionize the construction industry.
It will cause an increase in the cost of liability insurance for
the entire construction industry.
The current system is working. This will only force sellers and
buyers into the courtroom.
Prohibits sellers or builders from collecting attorneys
fees if they are the prevailing party, even if the case if frivolous.
It will negatively impact our economy and new home buyers by
increasing the cost of housing. The current problems with housing
affordability in Arizona
will drastically increase.
Prevents the freedom to contract for the sale of new homes by
prohibiting parties from agreeing to resolve their disputes through
mediation.
We have always had concerns whenever a process is created that
requires people to go to court to resolve their disputes. We are also
concerned anytime a union sponsored initiative is attempting to increase the
cost of construction, as this bill clearly does. This revision to the current
law is unnecessary because the current law is working. There is already a
precise process enforced by the Arizona Registrar of Contractors under which
a buyer can request repairs.
For these reasons, and many more, we encourage the voters to
reject Prop 201
Larry Landry, Member
of Government Relations Committee for International Council of Shopping
Centers, Phoenix
WESTMARC
urges a No Vote on Proposition 201!
WESTMARC is a regional coalition of business, government, and
education that advocates for good public policy. As a partnership between
business and government, it is paramount that we thoroughly consider public
policy issues and work collaboratively toward public policy that is good for
our West Valley region and our state.
WESTMARC has thoroughly reviewed Proposition 201 and believes
that the Homeowners' Bill of Rights will not be beneficial to our West Valley
region or our state.
WESTMARC believes that:
home warranties of 1-2 years are appropriate in the industry,
but that 10 years is far too long;
that the homebuilding industry should initiate warranties prior
to legislative mandate;
that 10-year warranties would significantly increase the cost of
Arizona's
housing at a time when the housing market is suffering;
that the dramatic increases in housing prices would slow Arizona's economic rebound and stifle the West Valley's
impending growth;
although this Initiative
originated in Arizona
it is wholly funded by a single out-of-state organization; and the law of unintended consequences will prevail for
many years to come.
WESTMARC believes that this Initiative is bad for Arizona's economy.
Therefore, we encourage you to join WESTMARC in opposing the
Homeowners' Bill of Rights and urge you to vote No on Proposition 201!
Ray L. Jones, Chairman, WESTMARC, Peoria
Jack W. Lunsford, President & CEO, WESTMARC, Peoria
Paid for by "WESTMARC"
Buying a new home is often the most important purchase in a
person or family's life. An important part of this process is the ability for
the homebuyer and homebuilder to work together when issues arise. It is
important to members of the Southern Arizona Home Builders Association that
we are able to work closely with our homebuyers to resolve any issues in a fast
and efficient manner. Prop. 201 wants to change all
that! Homebuyers and homebuilders will no longer be able to have their own
agreements to resolve disputes. The out-of-state trial attorney who drafted
this Prop 201 wants to mandate that the only way to resolve disputes is by
going to court!
And he doesn't stop
there! He also has given "prospective buyers" the right to sue. So
now people who don't even own a home can sue a homebuilder. The cost of these
frivolous lawsuits will be passed on to everyone hoping to buy a new home.
This will significantly raise the cost of housing and hurt Arizona's already struggling economy.
Arizona has a fair and
equitable Opportunity to Repair Process that
allows homeowners to get their problems fixed within 90 days. If parties fail
to come to an agreement, homeowners can then pursuit litigation. Join us in
voting "No" on Prop. 201 so Arizona
homeowners and homebuilders can continue to resolve issues so that homeowners
WIN and only the lawyers lose!
Randy Agron, Chairman, Southern Arizona Home Builders
Association, Vice President, A.F. Sterling Home Builders, Tucson
Edward Taczanowsky,
President, Southern Arizona Home Builders Association, Tucson
Paid for by
"Southern Arizona Home Builders Association"
We can all agree that any Arizona contractor or
homebuilder that builds or sells a home with construction deficiencies should
repair the home according to all applicable building codes and professional
workmanship standards. In fact, that is what current Arizona law requires. Arizona law implies a warranty of
workmanship and habitability in every home construction contract and
currently provides a process for resolving legitimate home construction
issues within 90 days. If the homeowner and builder cannot agree, the
homeowner may pursue litigation on a "loser pays" basis for
attorneys' fees. In addition, homeowners may file a complaint with the
Arizona Registrar of Contractors, which may arrange for an inspection of the
home and order the builder to correct any deficient work or make restitution
for it. All of the foregoing provides a fair, even-handed approach to
resolving disputes between homeowners and contractors in a reasonable manner.
Unfortunately, the
proponents of Prop 201 do not seem to be interested in fairness or reasonability.
Among other things, the proposition would eliminate the time-tested
"loser pays" system of awarding attorney fees, thus passing on the
cost of frivolous lawsuits to every consumer who buys a new home. It would
prohibit homeowners and builders from agreeing to less-costly, alternative
dispute resolution methods such as mediation and arbitration. It would
prevent the builder from even having the opportunity to make any necessary
repairs. Perhaps most importantly, it would impose significantly expanded
liability on Arizona
homebuilders that could drive many small companies out of business. Prop 201
is unnecessary and potentially disastrous for the citizens and homeowners of Arizona. I urge you to
vote No.
Lance M. Johnson,
Esq., Scottsdale
Vote No On Prop 201
I think Arizona is full of
bright and optimistic people. It is too bad that the out of state drafters of
Prop 201 do not.
These unknown drafters
PROHIBIT any adult or parties from agreeing to resolve any disagreements on
the sale of home, condo, or townhome through any other process but theirs. Do
they not trust us or is that how they work in their state? The right for an
adult to agree to ANY terms in contract on how to resolve differences should
be protected.
What will we be left
with? A mandated legal process that consumers have to go through... whether
we like it or not. We will have to go to court, pay big attorney fees, and
wait years for judges, lawyers, and insurance companies to make decisions
that we have no control over.
Ask the drafters why I
am not smart enough to make my own decisions when I have a problem? I am sure
when I go to court under this mandated process some day, I will be facing one
of the drafters across the table while he waits, like all plaintiff lawyers
do, for a big paycheck.
Send these unknown out
of state drafters a message and vote No on Prop 201.
Alisa Schroder, Meritage Homes, Scottsdale
Vote No On Pro 201
Prop 201 should be
rejected by the voters of Arizona.
I have been in Arizona for years and
every election I see a bunch of complicated proposals from various special
interest groups that are out for their own good, not ours. Prop 201 is
another one of those proposals.
Prop 201 is over four
pages of legal changes to how plaintiffs and defendants will be treated in
court when they have disputes over homes and "improvements on real
property". This proposal will be read by few and understood only by the
out of state attorney's who drafted it.
In addition, Prop 201
has never received a public hearing or an outside legal review and was
drafted in secret.
Why does Arizona seem to be the
lab rat for all the experiments of out of state interests?
Do not take a chance
on Prop 201. Vote no.
Paul Haggerty, Phoenix
Prop 201Just Goes Too Far!
I believe in a fair legal
system that allows all parties equal access to justice. I do not believe in a
legal process that gives the balance of power to lawyers or to one party in a
dispute.
Prop 201 creates an
unfair system were lawyers win and homeowners get stuck waiting years for
simple repairs to be made on their house. We have an existing process that
requires builders to fix repairs for consumers in 90 days, or give them cash
compensation. This is a quick and efficient way for people to get their
problems fixed when a builder is being a problem. And if the builder does not
fix the problem, then home owners can sue them.
Prop 201 guts this 90
day process. It creates a system so plaintiffs' attorneys will tell their
clients to go to court so that these attorneys get paid. Why would we create
a complicated legal system just so attorneys can get paid and homeowners
unknowingly wait years for the courts to decide whether they get their
problems fixed? Why not keep with our existing system for make repairs?
Vote against plaintiff
attorneys. Vote no on prop 201.
Russell Brock, Tempe
Despite
what the misleading name of Proposition 201 suggests, Arizona
homeowners already have a strong ‘Bill of Rights' within Arizona law.
Since 1931, the Arizona Registrar of Contractors (ROC) has
promoted quality construction by Arizona
contractors through a licensing and regulatory system designed to protect the
health, safety and welfare of the public. The ROC is a ‘90/10' agency that
sends 10 percent of the license fees it collects to the State General Fund to
help balance our budget.
The self-funded ROC, the Homeowners' Watchdog, costs our
homeowners and taxpayers nothing - unlike the expensive attorneys' fees
guaranteed by Proposition 201.
In July 1981, the Residential Contractors' Recovery Fund for
Homeowners was established for the purpose of reimbursing homeowners for
improper workmanship by residential licensed contractors.
The ROC has broad powers to fine, suspend or revoke a
contractor's license for poor workmanship standards and even provides a venue
for homeowners to file complaints against a contractor. Moreover, the
Recovery Fund ensures homeowners can collect their rightful damages.
You see, homeowners do have rights, but the trial lawyers don't
want you to realize it.
For over 50 years, the Arizona Contractors Association has
provided corporate, political and civic leadership in the Arizona construction industry for the
benefit of our companies, employees and communities. We're strictly a state
non-profit association whose membership consists of residential and
commercial general contractors, subcontractors of various trades, material
suppliers, developers, architects and engineers.
We urge voters to reject Proposition 201 and not be tricked by
slick and dishonest marketing appeals in its favor.
Proposition 201 will increase costly litigation and make
homeownership harder for more Arizonans.
Protect and Defend the Rights Homeowners Have Now.
Stay Out of Court, Where Only Attorneys Win!
Vote "No" on Proposition 201
Brett A. Jones, Vice President of Operations, Arizona
Contractors Association, Phoenix
Jeffery
M. Hall, General Counsel,
Arizona Contractors Association, Phoenix
Paid
for by "Arizona
Contractors Association"
The Professional Fire Fighters of
Arizona are opposed to the Homeowners Bill of Rights Initiative. This
initiative will add thousands of dollars to the cost of a house while we are
in a housing and financial crisis. Today we have Fire Fighters who cannot
afford to live in the city they work for; this initiative will make this
problem worst.
We respectfully ask
that you vote No.
Thank you,
Tim Hill, President,
Professional Fire Fighters of Arizona, Phoenix
Mike Colletto,
Legislative Director, Professional Fire Fighters of Arizona
Paid for by
"Professional Fire Fighters of Arizona"
Proposition 201 - The Frivolous Lawsuit
Initiative
Proposition 201 will
not benefit homeowners, but rather is a gift to unscrupulous lawyers. By
providing an incentive for frivolous lawsuits, Prop. 201 will decrease
current home values and reduce affordable housing in Arizona.
Prop. 201's frivolous
defect claims, additional attorneys' fees and litigation costs, and related
union costs will increase the price of new homes while devaluing the price of
current homes. Furthermore, the new price increases won't go to the builder's
bottom line but instead to the unions and lawyers who drove up the costs.
Prop. 201 seeks to prohibit "reasonable alternative dispute
resolution" which eliminates the homeowner's ability to arbitrate. Once
arbitration is abolished, reckless attorneys can, for example, claim a
variety of home defects (devaluing the home), settle with the builders, and
cover their legal fees. This leaves Arizona
homeowners with the misfortune of having to disclose hundreds of the
"alleged" defects when trying to sell their home.
In this economic
downturn, the last thing we need is to further hurt the housing market while
directing more money to unions and unscrupulous lawyers. Vote No on Prop.
201.
Steve Voeller, Phoenix
Ballot Format
Proposition
201
Proposed By Initiative Petition Relating To Homeowners
OFFICIAL TITLE
HOMEOWNERS' BILL OF RIGHTS
DESCRIPTIVE TITLE
ALLOWS PROSPECTIVE DWELLING BUYER
LAWSUIT; PERMITTING LAWSUITS DESPITE ALTERNATIVE DISPUTE RESOLUTION
AGREEMENTS; PROHIBITS SELLER ATTORNEY FEES; SHORTENS NOTICE AND RESPONSE
TIME; REQUIRES SELLER INSPECTION AND LICENSED CONTRACTOR; REQUIRES SELLER
CONTRACT PROVIDE 10-YEAR WARRANTY; SELLER MUST DISCLOSE CONFLICTS; GIVES
BUYER CANCELLATION RIGHTS; EXPANDS TIME TO FILE IMPROVEMENTS SUIT; EXPANDS
PURCHASER REMEDIES.
A "yes" vote
shall have the effect of granting "prospective buyers" a right to
sue over a dwelling action, permitting lawsuits despite alternative dispute
resolution provisions in sales contracts, shortening buyer purchaser notice
and seller response period before and after filing defects lawsuit, requiring
seller to inspect dwelling after receiving notice, requiring any seller offer
to include repair or replace option that must be performed by a licensed
contractor, eliminating seller right to receive attorney fees and costs if
the seller prevails, mandating seller to provide ten year warranty of
materials and workmanship, requiring newly constructed dwelling contract to
include disclosure of seller's financial relationship with a financial
institution, disallowing seller from requiring a buyer deposit unless
contract allows 100 day cancellation period, extending from eight to ten
years the time to file suit against any person making improvements to real
property, and expanding remedies available to an owner who is successful in a
dwelling action against the seller. Yes
A "no" vote
shall have the effect of retaining the current law regarding purchaser
dwelling actions. No
The
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Ballot.
Spelling, grammar, and punctuation were reproduced as submitted in the
"for" and "against" arguments.
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