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Brian W. Erikson
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Brian Erikson’s Answers

3,146 total


  • Can you assign a Texas Real Estate Contract to a third party for more money than the original contract price?

    Interested in placing a residential property under contract with the option to assign it to a third party for more than the original asking price.

    Brian’s Answer

    First, read your contract of sale to see if it permits or precludes an assignment. It is always smart to enter into a real estate purchase on behalf of the buyer or its assigns. That way, the contract can generally be assigned.

    Good luck.

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  • I contacted a contractor regarding replacing my roof, we agreed on price and job was done. Now the contractor refuses to give me

    The contractor refuses to give me my invoice and also letter of completion of job. I need those papers to send in to my insurance co.what legal option do I have?

    Brian’s Answer

    Don't pay the contractor until the contractor provides an invoice. Get your insurance company to list the requirements in writing. Give the writing to the contractor. An invoice and letter of completion are not unduly burdensome. Ask the contractor why the contractor has a problem with the paperwork, and go back to the insurance company to see how the insurance company chooses to resolve the matter.

    Good luck.

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  • How do recover my money from a breach of contract on a real estate deal?

    I signed an agreement to pay the earnest money for a real estate transaction and get paid a fee at closing. The buyer never closed on the property and went behind my back to have the title company disburse the earnest money to him. I plan to sue f...

    Brian’s Answer

    Looks like you will have to make claim against the buyer. Hopefully you have something in writing to document what appears to be a loan to the buyer.

    You can consider small claims court if your claim is less than $10,000. Otherwise, you will have to retain an attorney and sue in county or district court.

    Good luck.

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  • How do we terminate our general contractor agreement?

    The contract is basically an invoice that I signed, although the contractor did not. We paid 50% on the total cost, plus the balance once one segment was "finished" -- although we are still owed one part to be installed. We've paid roughly75% of t...

    Brian’s Answer

    You cannot simply announce that you are fed up with the contractor and then terminate him. You have to permit the contractor an opportunity to cure, and then when he fails to do so, then you can terminate him. See the following steps listed by way of example.

    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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  • I am a self employed contractor and i have a client (church) who is now 120 days past due on an $85,000 invoice.

    i am a self employed contractor and i have a client (church) who is now 120 days past due on an $85,000 invoice. when i made the agreement, the invoice was due when the work was completed and then i noticed that they changed the terms on me and ke...

    Brian’s Answer

    If you contracted directly with the church, and the church is the owner of the property, then you would be an "original contractor" under Chapter 53 of the Texas Property Code, and the Texas Constitution. As an original contractor, you would have rights to file a mechanic's lien against the Church's property. The deadline for filing a Property Code lien is the 15th day of the fourth month after the project has been completed, or your contract has been terminated, or your contract has been breached. For a Constitutional lien, there is no deadline but third parties are not on notice until you file the lien.

    Retain a construction attorney to help you evaluate your lien rights.

    The Church cannot simply change the contract by itself. You have to agree to the changes. But things can get tricky if you continue to perform after the Church announces a change. You would have to perform under protest, reserving your rights to seek an equitable adjustment of time and money.

    Good luck.

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  • Do I owe the subcontractor money if I paid the contractor, who says she paid the subcontractor?

    I hired a decorator (contractor) to redo my bathroom. All estimates, hiring, billing, went through the decorator. The remodeling company (subcontractor) has now come back to me--two months after the job is done, wanting more money because the dec...

    Brian’s Answer

    If your house is your homestead -- meaning that the house is in your name and you live there, you are protected by the homestead provisions of the Texas Constitution and Chapter 53 of the Texas Property Code. With homestead property, the contractor that contracts with you (known under the Property Code as the "original contractor") has to comply with the homestead mechanic's lien provisions of Chapter 53. Among the requirements are a written contract signed by the owners of the homestead (husband and wife), certain homestead warnings, and filing of the contract with the county clerk. Those formalities do not usually happen. Without such compliance, any attempted mechanic's lien filing would be invalid. That means that the original contractor or any of the original contractor's subcontractors or suppliers could not file a valid mechanic's lien on your homestead.

    A subcontractor has additional requirements. Assuming that the original contractor has satisfied the requirements for a valid mechanic's lien contract, a subcontractor then has to provide notice of non-payment to you and request that you withhold payment from the original contractor. The notice has to be sent by certified mail, and has to include warnings that if you do not withhold payment from the original contractor, you could be liable and your property subject to lien. This mailing has to be placed in the mail by the 15th day of the second month after the month in which the labor or materials were furnished for the project. If the notice is late, the claim for that month's work is not perfected.

    If the original contractor did not perfect a valid mechanic's lien contract, and the subcontractor does file a mechanic's lien, you should write a letter by certified mail to demand that the lien be released, pointing out that the property is your homestead, and why the original contractor has not perfected a homestead mechanic's lien. If the subcontractor does not voluntarily release the lien, he could be liable for a fraudulent lien under Chapter 12 of the Texas Civil Practice & Remedies Code. Chapter 12 can award damages of $10,000 or actual damages whichever is greater, plus attorney's fees.

    You can also demand that the lien be released under Section 53.160 of the Texas Property Code, which provides for a summary procedure (no trial necessary) for the removal of an invalid lien on someone's homestead.

    If the subcontractor's lien is valid, and you have paid the original contractor for the subcontractor's work, you can demand in writing that the original contractor resolve the lien claim. If you have not paid the original contractor, you should hold the money until the lien claim is resolved.

    Do not allow the subcontractor to remove his work under a theory that his work is removable. Write to the subcontractor and advise that you have already paid for the work, and now own it. If the subcontractor tries to remove his work, call the police. The police ought to stop the removal, as the matter is then a civil dispute and the subcontractor will need a court order confirming his rights to removal. The subcontractor cannot remove his work if doing so would breach the peace (in other words, no self help if you don't voluntarily agree).

    Good luck.

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  • Is a construction services agreement legally binding?

    I signed a construction services agreement for a new roof contingent on insurance company approval. I just got approved and want to know if I have to use the company that I signed the construction services agreement?

    Brian’s Answer

    The legal analysis would start with the terms of the agreement. The agreement may violate the Texas Home Solicitation Act, and could be void. Or, the agreement could violate the Texas Public Adjuster Act, and could be void.

    Retain a construction attorney to evaluate the agreement and your set of facts.

    Good luck.

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  • Can I expect work performed on a contract?

    I contacted Home Depot for laminate flooring. 1st estimate was given for my double wide mobile home. 2nd estimate was for the carpet replacements elsewhere in the same home. On visit 1 install, FPN flooring was supposed to lay laminate, but refus...

    Brian’s Answer

    • Selected as best answer

    The legal analysis would start with your contract. What does the contract say about who is responsible for the work and the quality of the work?

    Sometimes there can be mutual mistakes which could excuse work or call for a change order to adjust the pricing. If the contractor had investigated the job beforehand, there would be less support for a mistake that would excuse work or make it more expensive.

    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.

    See question 
  • A contract has been breached and I would like to know how to proceed

    Homeowner accepted my bid and entered into contract for services, but has refused to honor the agreements made and has stopped responding to my communications. His reasoning is based on weather related damages that occurred during the project....

    Brian’s Answer

    It appears that the owner has breached the contract and you may be entitled to damages, including, without limitation, lost profits.

    I suggest that you consider writing a letter by certified mail, return receipt requested, to set out the facts, and to assert your claim for damages. You may be able to use the letter as evidence should you have to file suit.

    If the owner lives in the property and owns it, you probably do not have any mechanic's lien rights as you probably did not perfect a valid homestead mechanic's lien contract, as is required under Texas Property Code sections 53.254, et seq. If so, do not file a mechanic's lien as you may end up facing a fraudulent lien claim.

    Good luck.

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  • Can we back out of a car purchase if we have not taken possession yet?

    We bought a 2016 automobile from a dealership last week. We traded in a car that had a payoff of $6500 and the dealership was going to pay that off (with $4500 toward the payoff). The car is still not "in". Says the transport is slow. I have b...

    Brian’s Answer

    If the dealer promised you a delivery date for your new car, and then did not honor the promise, you may have an argument that the contract has been breached, or that the circumstances have changed such that you are justified to withdraw from the contract.

    If there was no promise as to when delivery may happen, the prospects of a breach of contract become bleaker.

    Perhaps, you can argue that there was a mutual mistake as to when the new car would be delivered. But you will have a problem with your trade-in especially if it has already been sold. For example, what is the value to the dealer of your trade-in?

    To get matters rolling, I suggest that you consider writing a letter by certified mail, return receipt requested, to the dealer to request that the new car be delivered by a set date, and if not, then the transaction is cancelled. That could give you some options to argue.

    Good luck.

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