HOUSTON REAL ESTATE LITIGATION ATTORNEYS
Serving Clients in Houston, West Houston, Southwest Houston, Sugar Land, Katy, Copperfield, Memorial, Spring, Northwest Houston, Northchase, Spring Cypress, Champion Forest, The Woodlands, Kingwood, Humble, Lake Houston, Midtown, Memorial, West Oaks, Royal Oaks, Clear Lake, League City, Westchase Business District, Harris County, and Galveston County.
Texas Deceptive Trade Practices Act (DTPA Violations)
The Texas Deceptive Trade Practices Act (DTPA) was enacted on May 21, 1973. The DTPA is extremely broad and protects consumers from most, but not all, acts that are determined to be false, misleading, or deceptive acts or practices in the conduct of any trade or commerce. The Act defines a “consumer” as an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease any goods or services. The DTPA protects consumers against false, misleading, fraudulent, deceptive, and unconscionable actions. Within the context of real estate, the Act was intended to protect the consumers against deceptive and fraudulent sellers, builders, developers, and contractors. However, the because of the number of frivolous claims, the Texas legislature enacted the Texas Residential Construction Liability Act (see below) to minimize the number of frivolous and false claims.
The Houston Deceptive Trade Practices Act Attorneys and the Texas Real Estate Litigation Lawyers at the Law Offices of Steven Tuan Pham has experience in defending builders and contractors against frivolous and fraudulent claims. In addition, our attorneys also assist home owners prosecuting against developers, builders, contractors, and foundation repair companies for failure to build according to plan, construction defects, design defects, and fraud. Please contact our Houston Construction Defect Attorneys and our Champion and Northchase Construction Defect Lawyers for more information.
To be actionable, the claimant under DTPA must be defined as a “consumer,” see above. In addition, the goods or services must be in the context of a “trade or commerce.” Trade and commerce are defined as "the advertising, offering for sale, lease, or distribution of any good or service, or any property, tangible or intangible, real, personal, or mixed, any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state [Texas].” It is a factual question whether a person is a “consumer,” and thus is protected under the Act, or whether the goods or services can be determined as a “trade or commerce.” Therefore, each case is unique and will require our Houston Deceptive Trade Practices Attorneys to analyze the issue to determine whether the case is actionable or if there is a defense even if the builder or contractor acted as alleged.
What are the deceptive acts that are prohibited under the Act? Section 17.46(b) of the Texas Business & Commerce Code lists a “laundry list” of items that are actionable under the DTPA. They are as follow:
Passing off goods or services as those of another.
Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.
Causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another.
Using deceptive representatives or designations of geographic origin in connection with goods or services.
Representing goods or services that claim to have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities but do not or a person claiming to have a sponsorship, approval, status, affiliation or connection but does not.
Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or second-hand.
Representing that goods or services are of a particular standard, quality, grade, or that goods are of a particular style or model, if they are of another.
Disparaging the goods, services, or business of another by false or misleading representations of facts.
Advertising goods or services with intent not to sell them as advertised.
Advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisement disclosed a limitation of quantity.
Making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions.
Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.
Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service.
Misrepresenting the authority of a salesperson, representative, or agent to negotiate the final terms of a consumer transaction.
Basing a charge for the repair of any item in whole or in part on the quantity or warranty instead of on the value of the actual repairs made or work to be performed on the item without stating separately the charges for the work and the charges for the warranty or guaranty, if any.
Disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge.
Advertising of any sale by fraudulently representing that a person is going out of business.
Using or employing a chain referral sales plan in connection with the sale, or offer to sell, of goods, merchandise, or anything of value, which uses the sales technique, plan, arrangement, or agreement in which the buyer or prospective buyer is offered the opportunity to purchase merchandise or goods and, in connection with the purchase, receives the seller's promise or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer purchases the merchandise or goods.
Representing that a guaranty or warranty confers or involves rights or remedies which it does not have or involve; provided however, that nothing in this subchapter shall be construed to expand the implied warranty or merchantability as defined in Section 2.314 and 2.318 of the Business and Commerce Code to involve obligations in excess of those which are appropriate to the goods.
Selling or offering to sell, either directly or associated with the sale of goods or services, a right of participation in a multi-level distributorship. As used herein, "multi level distributorship" means a sales plan for the distribution of goods or services in which promises of rebate or payments are made to individuals conditioned upon those individuals recommending or securing additional individuals to assume positions in the sales operation, and where the rebate or payment is not exclusively conditioned on or in relation to proceeds from the retail sales of goods.
Representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced.
Filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract; provided however, that a violation of this section shall not occur where it is shown by the person filing such suit he/she neither knew nor had reason to know that the county in which suit was filed was either the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract.
The failure to disclose information concerning goods or services known at the time of the transaction and was used to induce the consumer into a transaction whom otherwise would not have entered had the information been disclosed.
Using the term "corporation," "incorporated," or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction.
Taking advantage of a disaster declared by the Governor under Chapter 418, Government Code, by: (A) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or (B) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity.
If you have any doubt whether your factual situation is actionable under the DTPA, you are encouraged to call and speak to one of our Houston consumer protection attorneys. If you have questions regarding a construction defect and would like to know whether you may file a DTPA action against a builder, real estate developer, a general contractor, or a sub-contractor, please feel free to call one of our Houston Construction Defect Lawyers or our Southwest Houston Real Estate Litigation Attorneys. To learn more about our attorneys and services, please feel free to contact us at 713-517-6645. You can also contact our office via online inquiry and one of our Houston Deceptive Trade Practices Act Litigation attorneys will respond to you accordingly.
The information above is NOT intended to replace a personal consultation with our Houston Real Estate Transaction Lawyers and our Spring Houston Real Estate Litigation Attorneys. Readers should not construe the information as a consultation. There may be other legal issues based on the specific fact of each case. Every case is unique and our Houston Real Estate Transaction Attorneys and our North Houston Real Estate Litigation Lawyers need to review the facts and circumstances of each individual case in order to provide a meaningful personal consultation. Please feel free to give us a call at 713-517-6645 or complete our Contact Form.