I was honored to spend the day at the Texas State Capital on February 27, 2019 for Roofing Day. It was a great experience meeting with those who make our system of government work in Texas and spending time with so many of my hard-working friends in the roofing and restoration community–true professionals passionate about the contributions they make to their communities. I met with various representatives regarding the roofer registration bill proposed by RCAT and NTRCA this legislative session. S.B. No. 1168, submitted by Senator Zaffirini, and H.B. No. 2101, submitted by Representative Capriglione, both propose registration of reroofing contractors as a means of vetting restoration contractors seeking to sell their services following a hail or wind event. Please join us in supporting this consumer-friendly legislation. You can visit https://www.saferoofsovertexas.com/ for more information.
Texas Property Code 41.007 includes two important requirements for contractors who perform work on existing residential property, (i.e., repairs and remodels):
1. If you the contractor want to require a homestead property owner arbitrate their dispute with you, that requirement must be in 10 point bold font.
2. A residential renovation/remodeling contract must also contain the following provision, also in 10 point bold font: “IMPORTANT NOTICE: You and your contractor are responsible for meeting the terms and conditions of this contract. If you sign this contract and you fail to meet the terms and conditions of this contract, you may lose your legal ownership rights in your home. KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW.”
Not sure if these provisions apply to you or whether you need to incorporate them in your own contract? Check with your attorney or reach out to one of the construction lawyers here at Saunders Walsh & Beard for help with this or any other construction-related questions you may have.
What are consequential damages and why do they matter? To understand consequential damages, you have to first understand direct damages. Direct damages are those that you’d typically think of as damages for breach of the duties one party owes another. On a breach of contract claim, they would include the cost to complete a project, to repair faulty work, and added supervision costs incurred because a project takes longer to complete. Or if you were in a car accident, direct damages would include repair costs to your car or medical bills for injuries sustained in the accident.
On the other hand, consequential damages (sometimes called special or indirect damages) are additional damages beyond those arising directly from the defendant’s actions or inactions. Direct damages are paid to reimburse a plaintiff for something the defendant was supposed to, but failed to do. Additional loss the plaintiff incurs as a result of the defendant’s breach, outside of plaintiff’s original duties to defendant, are consequential damages. For a breach of contract claim they might include the lost profits of unrelated Project B that you had to pass up because the defendant kept you from finishing Project A on time. Those lost profits—if you could prove them—would be consequential damages. In our car accident scenario, you might have been on your way to an interview for a great new job at a significantly higher salary you missed out on because of the accident. Again, if you could prove you would have been offered the job, you could potentially recover your lost wages.
In Texas, consequential damages are recoverable unless waived by the party who would otherwise have the right to assert them. These waivers can be one way. i.e. only one party to the agreement is waiving their right to consequentials, or they can be two-way waivers so that both parties are waiving their right to consequentials. Whether and how to construct the waiver is a decision that should be made with your attorney, although generally speaking, limiting one’s exposure to costly and a wide-ranging array of potential damages is a good thing.
There are good and bad people in most all fields, construction included. Occasionally hard lessons are learned regarding large upfront deposits and work not completed by unscrupulous contractors who take the money and run. Civil actions against them can be like pouring good money after bad. For those who get taken by unscrupulous contractors in Tarrant County, there may be another tool to seek justice.
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