Defining the Problem

A construction defect is any flaw in design, material, or workmanship that prevents a building from performing as reasonably intended or from meeting applicable codes. Defects can surface during construction, shortly after occupancy, or—sometimes decades later—within a wall cavity or under a slab.

Why Prompt Attention Is Critical

• Safety and habitability – Latent structural or mechanical defects can threaten life and property.
• Asset value – Uncorrected defects erode resale price and may hamper refinancing or insurance coverage.
• Legal exposure – In Texas, builders face statutory notice duties, implied warranties, and a ten-year statute of repose; missing these deadlines can foreclose recovery.

Typical Defect Categories

• Design errors such as undersized beams, inadequate drainage slopes, or misplaced expansion joints.
• Material failures including brittle pipe, defective stucco, or sub-standard concrete mix.
• Workmanship lapses like poorly flashed windows, mis-aligned framing, or sloppy electrical terminations.
• System malfunctions in HVAC, plumbing, fire suppression, or control wiring due to improper installation or calibration.

The Governing Legal Landscape

Texas Contract and Warranty Law

• Express warranties in the contract set the baseline for performance.
• Implied warranties of good and workmanlike construction and habitability attach to most residential work and cannot be waived by fine print alone.

Residential Construction Liability Act (RCLA)

• Homeowners must give written notice and a sixty-day cure opportunity before suing or arbitrating.
• Builders can inspect, test, and offer repair or monetary settlement; failure to engage may limit later damages.

Statutes of Limitation and Repose

• A four-year window applies to breach-of-contract claims; negligence claims generally carry a two-year limit.
• Regardless of discovery, all defect suits against designers and contractors must commence within 10 years of substantial completion (subject to a limited extension for latent discoveries). However, for new homes, this period is reduced to six years if the contractor provides a written warranty covering workmanship, materials, plumbing, electrical, HVAC systems, and major structural components.

Consumer Protection

• Texas Deceptive Trade Practices remedies may be available for misrepresentations or unconscionable conduct.
• Federal law rarely governs construction defects, but accessibility mandates under the ADA or Fair Housing Act can create federal liability for non-compliant design.
• On federal building contracts, the Federal Acquisition Regulation and warranty clauses control defect correction and cost responsibility.

Remedies at a Glance

• Repair or replacement performed by the builder or a third party at the builder’s cost.
• Monetary damages for corrective work, temporary housing, and, in severe cases, loss of use or diminution in value.
• Specific performance compelling completion in accordance with plans and specifications.
• Rescission—a return of the purchase price—reserved for extreme, pervasive failures.

Most contracts require mediation or arbitration before litigation; public-work bonds provide an additional payment avenue for subcontractors and suppliers if defects trigger non-payment disputes.

Prevention and Management

For Contractors

1. Implement rigorous quality-control checkpoints from submittal review to punch-list closeout.
2. Use detailed subcontracts that track the owner agreement and bind subs to the same warranties.
3. Keep daily field reports, photographs, and test results; these records become indispensable evidence if a claim arises.
4. Train crews on manufacturer installation instructions and evolving code requirements.
5. Address owner complaints promptly and memorialize all corrective actions.

For Owners

1. Vet builders for license standing, insurance, and a track record of defect-free projects.
2. Incorporate clear performance standards, long-tail warranties, and dispute procedures into the contract.
3. Conduct phased inspections by independent professionals, foundation, framing, mechanical rough-in, and final.
4. Document all communications and retain copies of plans, change orders, and testing reports.
5. Provide the statutory RCLA notice immediately upon discovering a defect; delay can impair rights.

Connect With Us

Construction defects need not spiral into protracted, expensive battles. A disciplined focus on preventive quality, clear contract drafting, thorough documentation, and early, good-faith engagement with statutory procedures will minimize disruption and protect both the structure and the parties’ balance sheets. When defects do emerge, swift advice from counsel steeped in Texas construction law and the relevant federal overlays can turn a potential fiasco into a manageable fix, keeping projects, reputations, and investments intact.

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