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Brian W. Erikson
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Brian Erikson’s Answers

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  • Can I sue a contractor for a warranty repair they performed and did not work, and now they claim it wasn't covered.

    I placed a warranty claim for a leak in my roof, contractor accepted and came out and fixed. A year later the exact same issue in the same place came back worse. They, again, accepted a warranty claim came out and executed the same repair. One mon...

    Brian’s Answer

    The analysis starts with whatever you have in writing. This would include the warranty, your contract, and any communications with the contractor. Even if an item was not covered by a warranty, once a contractor touches it, the contractor may be responsible for it, particularly if the contractor made the situation worse. An act of good faith is not an excuse.

    You should retain another roofing company to evaluate the problem and provide an estimate for repairing/resolving the leak. Then you can write to the first contractor and request that the contractor address and resolve the leak, or you will have to retain another contractor to do so. You can attach the estimate to show the first contractor how expensive the repair will be, and let the first contractor decide if the contractor wants to avoid being responsible for another contractor's repair costs.

    Good luck.

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  • Can your landlord make a hand printed eviction notice, when this is the first time being late on rent?

    We have been paying rent one every first Friday and second Friday for 4-5 months now. This month has only been the time we haven't paid on the first Friday, we would only be a week late and have gottin a hand written eviction notice. We have been ...

    Brian’s Answer

    You appear to have four issues: (1) eviction; (2) needed repairs; (3) landlord retaliation; and (4) loss of use. I address them below.

    (1) If you do not pay the rent on time, such failure is a breach of lease, and the landlord may choose to evict. Even if you pay the rent, the landlord can still seek possession of the premises.

    To address conditions that would materially affect the physical health and safety of an ordinary tenant, you have to comply with the landlord - tenant provisions set out in the Texas Property Code. You cannot simply declare that you are fed up and move out. If you do, the landlord could declare you in default of the lease, accelerate all the remaining payments, and sue you for all the rent remaining under your lease.

    For a condition that materially affects the physical health or safety of an ordinary tenant, the landlord is required to make repairs or to remedy the condition. To start that process under the Landlord - Tenant provisions of the Texas Property Code, specifically section 92.056, the tenant needs to provide written notice of the condition and to request repairs. When I represent a tenant, I recommend that the tenant hand deliver the notice and also send it by certified mail. If after a reasonable time, the landlord does not address/resolve the condition, or make a diligent effort to do so, the tenant would have to send a second notice. If the landlord does not then resolve the condition, or make diligent effort to resolve the condition within a reasonable time, the tenant can terminate the lease, remedy the condition and hold the landlord accountable for the cost, or pursue one of the other remedies set out in Texas Property Code section 92.056.

    You can review the Texas Property Code, Chapter 92 - Landlord - Tenant Residential Property, at the following web addresses:

    http://www.statutes.legis.state.tx.us/SOTWDocs/PR/htm/PR.92.htm

    -Or-

    http://www.texaspropertycode.org/

    (3) Retaliation: A landlord cannot retaliate against a tenant for pursuing a remedy concerning defects in the premises for six months under Texas Property Code section 92.331. The tenant's remedies for retaliation are set out in Property Code section 92.333:

    "Sec. 92.333. Tenant Remedies.
    In addition to other remedies provided by law, if a landlord retaliates against a tenant under this subchapter, the tenant may recover from the landlord a civil penalty of one month's rent plus $500, actual damages, court costs, and reasonable attorney's fees in an action for recovery of property damages, moving costs, actual expenses, civil penalties, or declaratory or injunctive relief, less any delinquent rents or other sums for which the tenant is liable to the landlord. If the tenant's rent payment to the landlord is subsidized in whole or in part by a governmental entity, the civil penalty granted under this section shall reflect the fair market rent of the dwelling plus $500."

    (4) Casualty Loss: If a portion of the leased premises is unusable, the landlord may owe a pro rata reduction of the rent under Texas Property Code section 92.054.

    Good luck.

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  • How long does a tenant not on the lease need to be gone to lose the right to be evicted?

    .

    Brian’s Answer

    Your facts and question are not clear. A tenant to be a tenant does not need to have a written lease. With no written lease, the tenant is renting month to month. To cause a month to month tenant to leave, the landlord needs to provide notice to vacate at least 30 days before the end of the next rental period.

    If the tenant's lease has expired, and the tenant has not vacated, the landlord can provide a notice to vacate in five days. If the tenant still does not leave, the landlord can apply for a writ of forcible detainer with your local justice of the peace. You can review the forcible detainer provisions of the Texas Property Code sections 24.001, et seq., at the following web address:

    http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.24.htm

    Good luck..

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  • What are the legal options and remedies available to me in regards to my hiring of a contractor who failed to deliver

    Hired contractor to install custom granite counter tops work was performed and he was paid in full upon completion.A quick visual was undertaken then the tops were covered to prevent damage from other work.when covering was removed the following ...

    Brian’s Answer

    You should write the contractor a letter by certified mail to request that the contractor return to correct/complete his work. In that letter, you should advise generally what work needs to be corrected/completed. You should also indicate that if the contractor does not return to correct/complete his work, you will have to retain another contractor, and will hold the first contractor responsible for the costs. Finally, indicate in your letter that if the contractor does not advise that he will return to correct/complete his work within one week, you will presume that he has no intention of doing so, and you will hold him responsible for the costs of correcting/completing his work.

    When the contractor does not return, you can retain another contractor to correct/complete the first contractor's work. Make sure that the second contractor itemizes his invoices and lists the costs to correct/complete the first contractor's work. You cannot charge the first contractor with the cost of work that was not within the first contractor's scope of work. For example, if the first contractor was supposed to install carpet, you cannot charge him for the second contractor's installation of ceramic tile.

    Once you have tallied the costs associated with correcting/completing the first contractor's work, you can consider suing him to recover those costs. The jurisdictional maximum for small claims court in Texas is $10,000. So, if your claim exceeds that amount, you will have to sue in County or District Court. In small claims court, you can represent yourself. In County or District Court, you will have to retain an attorney. However, under Texas law, you would be entitled to recover attorney's fees if you prevailed.

    Make sure that you take a lot of photos of the first contractor's work. Digital photos with the date of the photo imprinted on the photo are best. You should document the condition in which the first contractor left the work and what it took to correct/complete the work.

    Good luck.

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  • New apartment lease look over

    We would like to look over our new apartment lease before we sign it. The new owners have told us that we only have 48 hours to look it over or it's null and void. Or if we get a printed copy of it, we can only look it over inside the apartment le...

    Brian’s Answer

    A lease is a kind of contract. Lease negotiations are like other contract negotiations. Some landlords drive harder bargains than others. In your case, read the lease carefully and ask for the apartment rules and policies. If you take the lease off premises, you can always return it unsigned, or with revisions. The worst that the landlord or property manager can do is refuse to sign the revised lease.

    Good luck.

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  • Can my employee enforce qualification on an expired contract I signed 2 years ago

    I work for a non profit organization and the HR representive said I'm violating company rules based off an expired contract I signed back in 2013 stating I would have cat insurance. But I don't drive because my spouse takes me to and from work

    Brian’s Answer

    The analysis starts with the agreement that you signed, and extends to your job duties. If you are not required to drive during your work hours, your employer should not be intruding into your off hours. If your spouse has insurance on the car that you spouse drives, then likely you are covered as well. So, you would have insurance.

    Good luck.

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  • What are my rights for completing project? Contractor is threatening a lien and saying we're not letting him complete project.

    We hired a contractor for a $7000 pool renovation. Contract signed may 20 Half paid upfront. His contract requires final payment at completion. There is no written completion date but have in writing via text a June 12 completion date ( not acc...

    Brian’s Answer

    It happens often – the owner pays the contractor in full, but the contractor does not finish the project. Or, the contractor’s work is defective, and he does not return to correct it. Now what?

    First, you need to document the situation. You need to establish that the work is incomplete or defective. Take photographs, preferably with a digital camera which puts the date on the image. Then, write to the contractor by certified mail, to request that he return to complete/correct his work. You need to be specific – list what needs to be completed/corrected. The contractor may return to complete/correct his work, and the matter is resolved. If not, you should take bids to complete/correct the work, making sure that the scope of work for the replacement contractor matches the scope of the original contractor’s work. You cannot charge the original contractor for additional work, unless the additional work is necessary to resolve problems that the original contractor caused. With the replacement contractor bids, you should again write by certified mail to the original contractor and advise that if he does not return to complete/correct his work within five days (or advise in writing that he needs a reasonable amount of additional time), then you will default terminate your contract with the contractor, and hold him responsible for the money paid to the replacement contractor to complete/correct the original contractor’s work. If the original contractor returns and completes/corrects the work, the matter may be resolved. If not, retain the replacement contractor, and write a third time to the original contractor (by certified mail) and advise that your contract with the original contractor has been terminated for default, and that you will hold the original contractor responsible for the money paid to the replacement contractor. Unleash the replacement contractor, and have him complete/correct the original contractor’s work. The replacement contractor needs to keep track of the charges that relate to completing/correcting the original contractor’s work. You cannot charge the original contractor for costs that are enhancements or betterments. For example, if the original contractor was supposed to install a $100 fixture, you cannot charge for a $200 fixture. Once you have the itemized charges from the replacement contractor, you should write to the original contractor and present the charges for reimbursement. If the original contractor pays, or you negotiate an acceptable deal, then the matter is resolved. If not, you may have to file suit to collect your money. If the amount of money is within the jurisdiction of a small claims court, you may wish to file suit there, as you can file the suit yourself, the costs are low, and a court date is fairly quick. If the amount of money exceeds a small claims court’s jurisdiction, you should retain an attorney to undertake collection proceedings. The documentation and letter writing will be evidence in a collection suit.

    Good luck.

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  • Where do i find the proper documents necessary to file a auto mechanics lien

    Do you also help with business plans, & patents. Also, my business partner is of hispanic background. Is the federal government still working with the EOP laws when it comes to filing for a business loan?

    Brian’s Answer

    A repair shop’s rights to a lien on such cars and to sell them are set out in Texas Property Code sections 70.001, et seq., and Texas Business & Commerce Code sections 9.609, et seq. The process to perfect the right to sell the cars requires notice to the persons with an interest in the cars (typically, the titled owner and lender of record). The repair shop should first prepare and file a UCC-1 financing statement with the Texas Secretary of State to reflect the debt owed for the repair and storage of the car.

    The statutes discussed above set out a process of notification and sale of the cars. If the repair shop has properly complied, the seller can prepare a transfer statement which the buyer can use to apply to the Texas Department of Motor Vehicles for a new title. Under the Business & Commerce Code provisions (set out above), the DMV has to recognize a proper transfer statement.

    The more information that you have concerning the cars and the persons or entities with an interest in the cars, the less expensive it will be to research the interested persons who need to be notified.

    To undertake the process, you would need the following:

    1. Whatever you can find about the persons/entities with an interest in the cars.
    2. The vehicle identification numbers, as well as the vehicle year, make, model, license plate number.
    3. The amount of the unpaid repair invoices.
    4. A copy of the unpaid repair invoices.
    5. The terms of the repair engagement (interest or storage or whatever additional charges have accrued).
    6. Whatever information/documentation you have concerning efforts to contact the persons with an interest in the cars.

    The steps that an attorney would take include:

    1. Prepare and file a UCC-1 financing statement to reflect the outstanding repair and storage charges.
    2. Apply for a certified copy of the title.
    3. Prepare and mail out notices to the persons interested in the cars.
    4. Assist with the public sale of the cars.
    5. Prepare a transfer statement for the buyer of the cars at the public sale.

    Good luck.

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  • What legal rights do I have as a future tenant

    I signed a lease 2 months ago with a new rental apartment unit. All was fine and we were due to move in in 2 weeks, I have booked movers, arranged services and our current lease is due to expire July 11th. I received an email from the new rental...

    Brian’s Answer

    If you cannot wait two months (or more) consider negotiating a resolution of the lease that you signed. Otherwise, the landlord may try to hold you to the lease even though you have given up on the property, and found an apartment elsewhere. In other words, do not blow off the lease. Tie up the loose ends and secure a termination of the lease.

    Good luck.

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  • How do I save my home from foreclosure from the HOA (in 2 wks.), while also challenging the claim that I'm behind on assessments

    The HOA has filed with the county an intent to foreclose in the next 2 wks. on my property for delinquent assessments, which I do not owe. I would like to challenge them on these very excessive charges and the way they have avoided due process by...

    Brian’s Answer

    You should consider paying the money under protest, reserving your rights to seek a refund in the future. That will save you a lot of legal expense in fighting the foreclosure, or trying to redeem the house later.

    After the foreclosure is withdrawn, you can file suit to seek a refund of some or all of what you paid.

    Good luck.

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