Key points
- Residential defect claims generally require 60 days’ written notice and an inspection opportunity under the RCLA before suit.
- A builder’s reasonable settlement offer under the RCLA can limit what a homeowner may later recover, so responses matter.
- The statute of repose generally bars claims against builders more than 10 years after substantial completion, regardless of when the defect was discovered.
- Limitations periods are generally two years for negligence and four years for contract and warranty claims, subject to the discovery rule in some cases.
Common construction defects in the Houston area
- Foundation: inadequate soil preparation, improper post-tension slab work, poor drainage leading to movement and cracking;
- Water intrusion: failed flashing, windows, stucco and brick veneer, leading to rot and mold;
- Roofing: improper installation, inadequate underlayment or ventilation;
- Structural framing and load issues;
- Mechanical, electrical and plumbing failures and code violations; and
- Site drainage and grading that sends water toward the structure.
Legal theories for defect claims
| Theory | What it covers |
|---|---|
| Breach of contract | Work that doesn’t meet the plans, specifications or contract terms. |
| Express warranty | The builder’s written warranty, which often has its own claim procedures and limits. |
| Implied warranty of good workmanship | Work performed in a good and workmanlike manner. It may be displaced by a specific express warranty covering the same subject. |
| Implied warranty of habitability | For new homes, protection against latent defects that make the home unsafe or unfit to live in. It is generally not waivable except in limited circumstances. |
| Negligence | Claims against contractors and design professionals for failing to meet the standard of care. |
| DTPA and fraud | Misrepresentations about the work, materials or condition of the property. |
The Residential Construction Liability Act (RCLA)
For residential construction claims, Chapter 27 of the Texas Property Code sets a pre-suit process. The homeowner generally must send the contractor written notice describing the defects in reasonable detail at least 60 days before filing suit. The contractor may request an inspection and may make a written offer to repair or to pay. If the homeowner rejects an offer that a court later finds reasonable, the homeowner’s recovery may be limited. Handling this process correctly is essential to preserving full damages and attorney’s fees.
Seeing cracks, leaks or stains in a newer building?
Document everything with dated photos, and don’t make major repairs before an expert inspection. Then talk to us about notice and deadlines.
Building the case: experts and evidence
Defect cases are won by experts: structural and geotechnical engineers, building envelope consultants, roofing experts and cost-of-repair estimators. We retain the right expert early, preserve evidence before repairs, and organize the contract documents, plans, inspection reports and warranty records the case will turn on.
Damages
Recoverable damages may include the reasonable cost of repairs, diminished value where repair isn’t feasible, engineering and expert fees, reasonable temporary housing during repairs, and in some cases attorney’s fees. The RCLA and the contract can limit certain categories, so we evaluate damages under each applicable theory.
Defending contractors and builders
We also represent contractors and builders: responding to RCLA notices, making strategic inspection and settlement offers, asserting contractual limitations and warranty terms, and pursuing claims against responsible subcontractors and their insurers.