You have to wonder why an initiative (Proposition 201) entitled the "Homeowner’s Bill of Rights" is sponsored by Local 359 of the Sheet Metal Workers International Association.
According to the Home Builders Association of Central Arizona, the union used the threat of an initiative as a pressure tactic in a campaign to get Chas Roberts, an Arizona heating and cooling company, to unionize. Interesting tactic. Given the breadth and scope of this initiative, someone else is steering the ship. Well, union officials respond that they’re just trying to give extra legal protection to their members, who are also home buyers.
Whatever the rationale for putting the initiative to Arizona voters, the initiative has run into formidable opposition in the form of Arizonans Against Lawsuit Abuse, which is funded by The Coalition for Affordable Housing and The Home Builders Association of Central Arizona and supported by the home builders, several chambers of commerce, and Realtor groups. Perhaps forcing the home builders to raise money to defeat Proposition 201 was sufficient grounds to put the proposition to the voters.
Not surprisingly, the opposition’s strategy is to buck-shot shot the lawyers. Indeed, one of the recent ads in opposition shows a lawyer sleeping on a couch in his office while the lawyer dreamily states: "I should fly to Arizona and change their laws. What if they tried to sell a house and were forced to go to court? Big money for me. Wait, wait, what if when they tried to buy a house, they were forced to go to court then too? Big money for me again. And what if, even if they were just shopping for a house they could go to court? Big money comes my way one more time. With all these lawsuits, lawyers will be dancing in the aisles."
The opposition’s entire focus is how this Proposition will line the pockets of lawyers. There is no question that Proposition 201 may provide additional work for Arizona attorneys. However, Proposition 201’s foes are likely much more concerned about the fact that if Proposition 201 passes, home builders will have to provide a 10 year warranty on materials and workmanship, provide the owner of the home the choice of at least three qualified licensed contractors for each contract or subcontract for repair or replacement of any defect, disclosure of a seller’s financial relationship with any financial institution, refund 95% of a purchase contract deposit within 100 days of execution, and extension of a dwelling action to ten years from the current eight year period.
The opposition is rightfully concerned that Proposition 201 prevents any purchase contract from having a provision requiring the purchaser to pay the attorney’s fees or expert fees of the seller under any circumstances. While this certainly sounds heavily skewed in the buyer or owner’s favor, the fact is, Arizona law (A.R.S. Section 341.01) still provides that the prevailing party in any dispute arising out of contract is entitled to recovery of their reasonable attorney’s fees.
In the end, while the opposition to Proposition 201 fears that lawyers will be the winners in the end, their attacks fail to recognize that purchasers of homes would still be responsible for footing the bill for their own legal expenses, which is a built-in mechanism for limiting frivolous lawsuits, not to mention that sanctions (Rule 11, Arizona Rules of Civil Procedure) remain available to ward off such suits. Forget the attorney’s fees and "lawyer" abuse, the home builders should be much more concerned about having to offer 10 year warranties, fully disclose their relationships with lenders and title companies, and actually fix or pay for defects.