For many of us, our home is the biggest financial investment we will ever make. For small business owners, an office or other building may also be one of our biggest assets. When problems arise during or after construction or renovation of our home or business, it can have a huge impact on our financial stability and our peace of mind.
What is a Construction Defect?
Construction defects can be wide ranging, from defects in the design of a house or structure, problems with the workmanship or construction, or defects in the materials used in construction. Texas law defines a residential construction defect as, “…a matter concerning the design, construction, or repair of a new residence, of an alteration of or repair or addition to an existing residence, or of an appurtenance to a residence, on which a person has a complaint against a contractor. The term may include any physical damage to the residence, any appurtenance, or the real property on which the residence and appurtenance are affixed proximately caused by a construction defect.” TX Prop. Code § 27.001.
Construction defects can also happen in commercial properties, office parks, apartment complexes, condominiums, and more. A construction defect can be almost anything related to the design, construction, or alteration of a building and its property. Owners of any property affected by construction defects, including business owners, multi-dwelling property owners, and home owners associations, can seek damages for losses caused by construction defects.
What are Some Common Construction Defects?
Most construction defects can be classified as either design, material, construction, or subsurface deficiencies.
Problems with the design can result from architects or engineers that do not design a building to code. This can result in a number of problems throughout a building. An improperly designed roof is a common design defect that can result in water intrusion or penetration, inadequate structural support, and poor drainage.
Using inappropriate or inferior building materials can cause problems virtually anywhere in a structure. For example, properly installed windows may still leak if the window is defective. Manufacturer defects in flashing, waterproofing materials, shingles, drywall, particle board, etc. can cause water intrusion throughout a home or business.
Poor workmanship can also cause problems throughout a building structure. Everything from cracked foundations to improperly placed tile and buckling floorboards can be signs of a construction defect. Other problems might include pest infestations, leaks, rotting wood, plumbing or electrical problems, and wall cracks.
In many areas of the country, including Texas, the soil may expand when wet and contract when dry. If a building isn’t built on a proper foundation for the soil conditions and with adequate drainage, this can result in cracked or shifting foundations. Moreover, before building a structure on hills or other locations where it can be difficult to provide stable foundation support, the ground must be properly compacted and prepared for construction. If this isn’t done, it can result in shifting foundations, flooding, or landslides.
Construction defects can also include damage to shared infrastructure, roadways, and landscapes. Street collapses, sinkholes, damages to utility lines, drainage and sewage problems, and serious erosion issues can all be problems caused by construction defects for which commercial property owners, home owners associations, and condominium associations may be entitled to seek damages.
If you are a property owner and suspect defective work, design, or materials in the construction, renovation, or repair of your building, you should consult an experienced construction litigation attorney to assess your options. Contact the Underwood Law Offices for a free consultation. Our McKinney, Texas office serves all of the Dallas and Fort Worth areas, including Plano, Frisco, Allen, and McKinney.
What Duty of Care Does My Contractor Owe Me?
Contractors, material manufacturers, and their employees have a duty to manufacture and construct products that comply with industry standards and ensure that a building is reasonably safe for those who live or work there. Similarly, an architect or designer should also perform with the ordinary and reasonable care usually exercised by one in that profession. If the designer, contractor, or manufacturer of construction materials fails to exercise that level of care, the consequences of their negligence can be financially devastating to home and business owners.
Can I Lose My Insurance Because of Construction Defects?
If you have a serious construction defect, some insurance companies may refuse to insure your home until it’s repaired. This can leave you financially vulnerable due to a contractor’s negligence.
Will a Construction Defect Affect My Property Values?
A construction defect can definitely affect the short-term and long-term value of your property. Serious defects may be difficult to repair and even render your property impossible to sell or insure.
What is a Mechanic’s Lien?
In Texas, if a contractor isn’t paid for their materials or labor, they may be entitled to file a “mechanic’s lien” based on the Texas constitution or the mechanic’s lien statute. A mechanic’s lien is a lien upon the property for the unpaid amount that can be enforced in court. Based on whether your property is commercial or residential, a contractor may be required to give you notice. You can’t ignore a mechanic’s lien, however. If you fail to contest it, a contractor may even force the sale of your property to collect amounts due. If you receive notice that a mechanic’s lien has been filed on your property, you should consult an attorney as soon as possible. If you want to learn more about our construction litigation services, call our toll free number 844.UNDERWOOD (844.863.3796) or send us an email for a free consultation.
Do I Need a Lawyer for Construction Defects?
While it can be tempting to try to handle construction defect claims against a contractor yourself, it’s a good idea to get an experienced attorney involved as soon as possible. We can help you document your claims, provide notice to the contractor, help negotiate with the contractor, and prepare and document your case if you need to file a lawsuit. Texas statutes related to construction claims are very specific in nature. If you fail to provide proper notice or document all of your possible claims, your suit could be dismissed.
You have two years to file suit under the Residential Construction Liability Act for negligence, negligent misrepresentation, and product claims and for years to file suit for breach of contract and breach of warranty. There are some exceptions to these limits. Under the Discover Rule, the statute of limitations may be extended until you discover, or should have discovered with reasonable diligence, the facts leading to your claim. Under the Fraudulent Concealment Rule, the statute of limitations may be extended until you discover, or should have discovered, fraudulent or deceitful conduct leading to your claim.
All of these legal requirements can be tricky to navigate on your own. That’s why it is a good idea to consult an experienced attorney as soon as you suspect a construction defect.
How Can I Recover for a Construction Defect in My Home?
As we mentioned earlier, Texas has some specific requirements to address residential construction defects. The Texas Residential Construction Liability Act is designed to encourage the parties to settle problems out of court and to protect home owners from unscrupulous construction practices. The RCLA applies to “any action to recover damages or other relief arising from a construction defect, except a claim for personal injury, survival, or wrongful death or for damage to goods.” It can also apply to someone who subsequently purchases the property and then sues the contractor. So, the Texas RCLA is a pretty broad statute.
Notice Requirements: There are a few hoops to jump through before you can sue a contractor for construction defects in Texas.
• Before filing a lawsuit, a residential homeowner has to provide the contractor 60 days written notice of any construction defects.
• Within 35 days of receiving the written notice, the contractor may submit a written request to inspect the property.
• The inspection provides the contractor with the chance “to determine the nature and cause of the defect and the nature and extent of repairs necessary to remedy the defect.”
• The homeowner then has to provide a reasonable opportunity for the contractor to inspect the property.
• You don’t have to provide notice to the contractor before filing suit if you need to prevent the statute of limitations from expiring.
• If the contractor is suing the homeowner, the homeowner can bring construction defects as a counterclaim without providing notice under the RCLA.
If you think you have a construction defect in your home, it’s best to consult a construction attorney as soon as possible to ensure that you meet the notice and statute of limitations requirements and to ensure that the damages are well documented for possible litigation or settlement. Don’t let your chance to ensure your home is repaired slip away. Contact the Underwood Law Offices today.
I’m a Contractor Facing a Suit Under the RCLA. What Should I Do?
Under the RCLA, you have 45 days after you receive notice from the property owner to offer a settlement. This can include an agreement to make repairs within 45 days after the offer is accepted. The homeowner has 25 days to respond to your offer and then you have 10 days to counteroffer. Of course, the homeowner can file a lawsuit at this point as well. If the homeowner rejects your offer, they can only recover the fair market value of your last settlement offer, a purchase offer, or the amount of a reasonable monetary settlement. These provisions help prevent windfall monetary awards in court and encourages property owners and contractors to come to a reasonable resolution.
There are also several defenses available to contractors under the RCLA, including:
• The negligence of someone other than the contractor or its agent, employee, or subcontractor.
• The failure of someone other than the contractor to mitigate damages or maintain the residence.
• Normal wear and tear.
• Normal shrinkage from drying or settlement.
• The contractor’s reliance on official government records about the property, if the information turns out to be false or inaccurate.
If you are a contractor facing a suit under the RCLA, you should consult an experienced construction litigation attorney to determine if you have a good defense. Contact the Underwood Law Offices for a free consultation. Our McKinney, Texas office serves all of the Dallas and Fort Worth areas, including Plano, Frisco, Allen, and McKinney.