Home>Levelset Community>Legal Help>Can the following waiver apply to a general contractor hired by an HOA board to build a retaining wall? “WAIVER OF THE

Can the following waiver apply to a general contractor hired by an HOA board to build a retaining wall? “WAIVER OF THE

TexasConstruction Contract

Can the following waiver apply to a general contractor hired by an HOA board to build a retaining wall? “WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS. AN OWNER IS NOT REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. “BY SIGNING THIS DOCUMENT, I AGREE TO WAIVE MY RIGHT TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. “I UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS WAIVER MAY NOT BE CANCELED AT A LATER DATE. “I HAVE VOLUNTARILY CONSENTED TO THIS WAIVER.”

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Jan 23, 2020

Section § 53.256(d) of the Texas Property Code creates the ability to wave a contractor's requirement to provide a list of subs and suppliers for a residential job. That section also provides specific text that must be used in the contract in order for the waiver to be effective. The statutory text looks an awful lot like the information you provided above, but to be sure, here is the exact waiver text the statute provides. Keep in mind, also, that the waiver must be "conspicuously printed" in at least 10-point, bolded font: “WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS. AN OWNER IS NOT REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. “BY SIGNING THIS DOCUMENT, I AGREE TO WAIVE MY RIGHT TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. “I UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS WAIVER MAY NOT BE CANCELED AT A LATER DATE. “I HAVE VOLUNTARILY CONSENTED TO THIS WAIVER.”

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Jan 23, 2020

My question was whether or not a HOA board can sign this type of waiver for work being done in our neighborhood. People in the neighborhood would like to see where our money goes when they spend $53,000.

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Jan 23, 2020

Ah, that's a great question. For one, unfortunately, the Texas Property Code is silent as to home owner's associations, specifically. But, in most cases, an agent can act on behalf of an owner, and that's how most HOA's are able to operate anyway - as the agent of the owners. So, it's possible that an HOA may be able to sign documentation that binds an owner without the owner's explicit approval. Ultimately, though, that relationship will be dictated by the HOA agreement. Notably - § 53.256(d) applies to residential construction projects, and a project for a development or collection of residential properties might not, itself, qualify as residential. To be sure - § 53-001(10) defines a residential construction project as "a project for the construction or repair of a new or existing residence, including improvements appurtenant to the residence, as provided by a residential construction contract." So, because the definition of a residential construction project contemplates a singular residence, a contract for work that spans multiple residential properties might not ultimately qualify as a residential construction project (at least under that definition) - which could mean the listing and waiver requirements could be moot.

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Jan 24, 2020

Thank you so much, this is great information. The $53,000 was to rebuild a retaining wall between several residences - there was no new construction or repair to a residence. After about six months of different neighbors requesting to see an itemization of the project as well as invoices and getting the run-around, the HOA all of a sudden said they signed this waiver with the general contractor. So if I'm understanding you correctly, this should only apply to an individual residence and not an HOA? Thank you for responding - this information is greatly appreciated.

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Jan 24, 2020

<p style="box-sizing: border-box; margin: 0px 0px 15px; color: #5b7084; font-family: Lato, sans-serif;">Thank you so much, this is great information. The $53,000 was to rebuild a retaining wall between several residences – there was no new construction or repair to a residence. After about six months of different neighbors requesting to see an itemization of the project as well as invoices and getting the run-around, the HOA all of a sudden said they signed this waiver with the general contractor. So if I’m understanding you correctly, this should only apply to an individual residence and not an HOA?</p> <p style="box-sizing: border-box; margin: 0px 0px 15px; color: #5b7084; font-family: Lato, sans-serif;">Thank you for responding – this information is greatly appreciated.</p>

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Jan 24, 2020

Not sure what's happening with your site - the last two responses happened when I hit submit

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