It recently came to my attention that many collection agencies have not registered as collection agencies to do business in Washington or in other states in which they operate. In order to avoid having to do this some say that they have purchased the debt so they are not collecting it for someone else. This is a fairly transparent means of trying to avoid collection agency law in the states as well as application of the federal Fair Debt Collection Practices Act. In many states, including Washington, this tactic does not work. The law covers debts purchased by businesses in the debt collection business. Failure to register exposes these businesses to significant damages and is an enormous advantage to any consumer.
I was asked to briefly summarize some of the legal considerations that a buyer might keep in mind while venturing into the real estate market in Washington. I think something like this might prove to be helpful so long as you keep in mind that this is not a comprehensive list of all possible difficulties. Here is a short list of legalities that might be helpful to buyers of real estate to keep in mind.
New Construction. Washington has an extremely harsh “statute of repose.” Six years after the final permit is issued all recourse against anyone working on the project is barred, exect as to damage that has already arisen.
If for example you buyer a building, or bridge that collapses six and one half years after the last permit, you have no recourse against anyone in the construction industry.
The Washington statute of creates false expectations in the minds of consumers.
If you buy a building with a useful life of forty years you expect it to last that long. In Washington you can only count on six, assuming that you are buying a new building. If you are buying a used building, it is very likely that the six years have passed and you have no recourse whatsoever against anyone involved with the construction of it.
People who spend money to retrofit buildings , to make them earth-quake proof, must remember that they have no recourse against the engineers or builders if the work is faulty, assuming that the earth-quake occurs more than six years later.
This puts a premium on investigation and study before buying. It also puts a premium on the purchase agreement and the ability to look to the seller if there are latent defects. With respect to construction, owners should consider taking these things into account in negotiating contracts.
Building Codes. Many residential buyers put stock in representations that the building complies with code or they just rely on the fact that the building had to be inspected and approved by local government before it could be occupied. This does reduce the chances of defective construction but it is a long way from assuring the purchaser that the construction is not defective and there is no assurance that the building in fact complies with code. There is no recourse in the usual case against the city or county if the building was approved in spite of noncompliance — and this happens.
Form 17. The Seller’s Disclosure Statement required in residential sales has recently been interpreted (see my last entry) as unenforceable by one of our three courts of appeals. This can be cured by modifying the standard forms, but it certainly opens the door to using the form as a tool of deception.
Bad Materials and Workmanship. There are a number of cases in Washington in which purchasers have been held to be without recourse when the property they purchased was defective. The “economic loss rule” is invoked to hold the buyer without recourse. This result can be avoided contractually.
Verbal agreements. The form purchase and sale agreement in common use says that there are no other enforceable agreements. That means that agreements — even written agreements — outside the purchase and sale agreement are at least of questionable enforceability.
“Merger into the Deed.” When the transaction closes many of the terms and conditions of the agreement are terminated. Discovery after closing of a false representation may be too late if the representation or assurance is deemed to have been merged into the deed. This can be avoided by care in writing the contract.
There are of course other issues that arise but this at least gives you a sense of the care that must be taken in protecting an important investment such as buying real estate.
Please note that in the last legislative session a very modest bill was introduced to confer limited rights on home buyers. The bill was killed by the Democrats, particularly Frank Chopp.
Speaker Chopp killed this common sense measure to preserve the immunities of the construction industry, maintaining the burden of defective construction on the back of the absolutely innocent consumer. Mr. Chopp believes that by catering to BIAW, the building industry lobby, the Democratic Party will curry the favor or at least avoid the opposition of one of the State’s most influential special interests.
By the way, frequently homeowner’s property insurance does not cover this loss, leaving the consumer completely out of luck.
The legislature is considering putting more teeth in the consumer protection act. SB 6382 would change the penalty provision from three times the amount of damages to a maximum of $50,000 per violation. The reason for this that many, perhaps most of the consumer protection issues that arise involve a small amount of money but are repeated sometimes ten thousand or more times, such as billing practices, and small charges on retail items. If the fraud involves $1 per customer then the maximum penalty would be $4 for each customer ( damages of $1 and a penalty of treble damages of $3) who sued. (Class actions, despite what you hear, are rare because of the great cost bringing one.) This bill would make the the maximum penalty $50,000 depending on the gravity of the offense. A consumer fraud culprit could no longer say “so sue me” knowing that such a suit would be virtually impossible.