Insights

Texas Construction Defects

Before You Sue Your Builder: The Texas RCLA Notice Process

Texas does not let a homeowner go straight to court over a construction defect. First, you must give the builder written notice, let the builder inspect, and consider any settlement offer the builder makes. These rules come from the Texas Residential Construction Liability Act, usually called the RCLA (Texas Property Code Chapter 27).

Getting this process right matters. Mistakes can delay your case, and mishandling a builder’s offer can limit what you can recover later.

Does the RCLA apply to me?

Almost certainly, if your claim is about a defect in a home. The RCLA applies to virtually any lawsuit seeking damages or other relief for a construction defect in a residence. It applies even if you sue for breach of contract, breach of warranty or deceptive trade practices rather than under the RCLA itself. Where the RCLA conflicts with other laws, including the Deceptive Trade Practices Act, the RCLA wins.

A “construction defect” includes a problem with the design, construction or repair of a new home, an alteration, repair or addition to an existing home, or something attached to the home.

A “residence” includes:

  • detached one- and two-family homes;

  • townhouses up to three stories with their own exit;

  • accessory structures up to three stories;

  • duplexes, triplexes and fourplexes; and

  • condominium and cooperative units and their common areas.

The RCLA does not apply to claims for personal injury, wrongful death or damage to personal belongings (“goods”), or to certain other claims, such as a builder walking off the job before finishing, certain real estate fraud claims, and certain claims about misuse of construction payments.

Step 1: Send written notice at least 60 days before filing suit

At least 60 days before you file a lawsuit or arbitration, you must send the builder a written notice that:

  • goes by certified mail, return receipt requested, to the builder’s last known address; and

  • describes each defect in reasonable detail.

Along with the notice, you must give the builder the evidence you have that shows what the defect is, what caused it and what it will take to fix it, such as expert reports, photographs and video or audio recordings.

A few things to know:

  • Other letters don’t count. A Texas appeals court held that a DTPA demand letter, the initial disclosures and the lawsuit itself, even taken together, did not satisfy the RCLA notice requirement. Send a separate RCLA notice.

  • New defects need new notice. If you find more defects later and add them to your case, the builder is entitled to notice of, and a chance to inspect, those new defects too.

  • If the builder sues you first. If the builder files suit against you (for example, over an unpaid balance) and you respond with a defect claim, your court papers serve as the notice, as long as they describe each defect in reasonable detail.

Step 2: Let the builder inspect (within 35 days)

If the builder asks in writing, you must give the builder a reasonable opportunity to inspect your home during the 35 days after it receives your notice. The builder may inspect up to three times in that period and may take reasonable steps to document the defects, such as taking photographs.

Step 3: The builder may make a settlement offer (within 60 days)

Within 60 days after receiving your notice, the builder may send you a written settlement offer. The offer can be:

  • an offer to repair, by the builder or by an independent contractor, at the builder’s full or partial expense. It must describe the repairs in reasonable detail and say when they will be finished if that will take more than 60 days;

  • a cash offer; or

  • an offer to buy back your home.

If you accept a repair offer, the repairs generally must be finished within 60 days after the builder receives your written acceptance, unless you or events outside the builder’s control cause a delay.

Step 4: Respond within 25 days if the offer is unreasonable

If you think the offer is unreasonable, you must tell the builder in writing, within 25 days, and explain in reasonable detail why. The builder then has 10 days to make a supplemental offer.

If you do not accept an offer within 25 days, it is treated as rejected.

The timeline at a glance

  • Day 0: You send written notice and your evidence by certified mail.

  • Days 1 to 35: The builder may inspect, up to three times, if it asks in writing.

  • By day 60: The builder may make a written settlement offer.

  • Within 25 days of the offer: You accept, or explain in writing why it is unreasonable.

  • Within 10 days of your objection: The builder may make a supplemental offer.

  • After 60 days from your notice: You may file suit if the dispute is not resolved.

What happens if you skip a step?

Your case will not be thrown out, but it will be put on hold (“abated”) until you comply. If the builder files a sworn motion saying it did not receive proper notice, was not given a chance to inspect, or that you did not follow the offer procedures, the case is automatically put on hold starting on the 11th day, unless you file a sworn response before then.

There is one important exception to the 60-day wait. If waiting would cause a filing deadline to expire, you can file suit sooner, and the case can be paused while the notice process plays out.

Why your response to an offer matters

The RCLA rewards reasonable offers. If you reject an offer that a judge or jury later finds reasonable, or you accept a repair offer and then don’t let the builder do the work, your recovery can be capped at the value of the builder’s last offer, and you can recover only the attorney’s fees you incurred before the offer was rejected. On the other hand, a builder that fails to make a reasonable offer loses the RCLA’s limits on damages. We explain this in more detail in our article on whether you have to let your builder fix your home.

Emergencies: health and safety threats

If a defect creates an imminent threat to the health or safety of the people living in the home, the builder must take reasonable steps to fix it as soon as practicable after receiving written notice. If the builder does not fix it within a reasonable time, you may have it fixed and recover the reasonable cost of the repairs from the builder, plus attorney’s fees and costs.

What this means for you

  • Keep copies of everything you send and receive, and keep the certified mail receipts.

  • Write the notice carefully. Vague notices can lead to delays and arguments.

  • Get an independent expert’s opinion before deciding whether a builder’s offer is reasonable.

  • Mark the 25-day response deadline on your calendar the day an offer arrives.

This article provides general information about Texas law. It is not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its facts and the law can change. If you have a construction defect problem, talk to a Texas lawyer about your situation.