A service to homebuyers

Though flawed, Post's cautionary tale valuable

Feb. 24, 2007

by David Kopel

The lead article in the Denver & the West section of last week's Sunday Denver Posttook on a very important topic: the rights of homeowners to sue homebuilders over defective construction. Unfortunately, the article was missing some important information.

The article, by Karen Crummy, looked at the current debate in the state legislature about a bill to prohibit new home sales contracts in which the buyer waives some of his rights to sue the homebuilder. The article performed a very important public service by informing readers that some of these waivers may be unenforceable in court, according to a University of Denver professor.

It would have been even better if the article had reported on whether any homeowners have challenged these waivers in court, and whether they have been successful.

While homeowners might sign a contract which gives up some rights to sue, they still have a right to sue to enforce the warranty - the guarantee that the homebuilder provides.

Crummy warned that warranties "can contain more exceptions than coverage." But she only provided a single example, and it was a very strange one: a builder who said that the builder's warranty did not cover additional home improvements which had been added by the homeowner.

It's hard to understand why anyone would expect the homebuilder's warranty to cover subsequent work that was performed by someone else.

At the legislature, the main group lobbying against the pro-lawsuit bill is the Colorado Association of Home Builders, a trade association; Crummy's article included a quote from a spokeswoman for the group.

The main proponent of the pro-lawsuit bill is the Colorado Home Alliance, which obviously played an important role in helping the Postwith the article. The article quoted from real estate contracts which had been obtained by the alliance, and relied on the alliance for a text box which listed 19 builders that have used waivers.

Oddly enough, however, the article never quoted a named spokesperson from the alliance. The article, by way of background, discussed a failed 2004 ballot initiative (Amendment 34) that would have removed some legislatively imposed limits on homeowner lawsuits. Clay Vigoda - the political consultant who ran the pro-lawsuit initiative - also happens to be the registered owner of the Colorado Home Alliance Web site.

The Colorado Home Alliance and thePostboth deserve praise for warning homebuyers about the dangers of signing a contract without carefully reading all the terms. But it's hard to see why an article that mentions the pro-34 campaign and the alliance wouldn't mention the overlap between the two groups.

It's rare for the Denver dailies to argue with the letters to the editor, but on Feb. 15, the Posttwice argued back against published letters. Both times, the Post'spurported corrections of the letter-writers were wrong.

One letter criticized state legislators for "trying to change the wording" of Amendment 41 just because a "small number of citizens may be negatively impacted." The author said that Colorado should "protect the majority adhering to the amendment as passed by the people." The Postappended an "Editor's note" that Amendment 41 allows the legislature "to pass other legislation to facilitate implementation of the Amendment."

Yet Amendment 41 specifically states: "Legislation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions of this articleor the powers herein granted" (emphasis added). So, contrary to what the Postasserted, the legislature is forbidden to narrow the amendment, or to create exemptions for hardship cases.

Of course it's possible that the legislature could simply ignore the plain language of Amendment 41, as the legislature did with Amendment 27 (campaign finance), as well as with the five provisions of our state constitution that ban corporate welfare. But it's not really fair to correct a letter-writer for having the temerity to insist that the legislature obey the actual language of the constitution.

The Post'scorrection of an adjacent letter was even worse. The letter complained about Amendment 41 prohibiting college scholarships for the children of government employees. The "Editor's note" announced that the letter had been written before a court ruled "that families of state government employees can still accept scholarships despite the wording of Amendment 41." In fact, the court ruling in question applied only to Boettcher scholarships, which require recipients to fulfill various continuing obligations, which most ordinary scholarships do not.

Rocky Mountain News publisher John Temple has noted that the new, smaller typefaces of the down-sized Rocky are only 3 percent smaller than the old typefaces. Maybe so, but it's a crucial 3 percent. For me, the new typeface in the Spotlight section is much more work to read, partly because it uses a sans-serif font (without little tails on the letters).  

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