Insights

Texas Construction Defects

Do I Have to Let My Builder Fix It?

After months of problems, many homeowners do not want the builder who caused the defects anywhere near their house again. That is understandable. But in Texas, how you respond to a builder’s request to inspect or repair can have a big effect on what you can recover later.

The short answer

No, you are not legally required to accept a builder’s offer to repair. But:

  • you must give the builder written notice and a reasonable chance to inspect before you sue; and

  • if you turn down a repair offer that is later found to be reasonable, the amount you can recover can be capped.

You keep the right to say no. Saying no to a reasonable offer just comes at a cost.

The notice and inspection steps are not optional

Under the Texas Residential Construction Liability Act (RCLA), you generally must send the builder written notice describing the defects at least 60 days before filing suit, along with your supporting evidence, such as expert reports and photos. If the builder asks in writing, you must give it a reasonable opportunity to inspect the home, up to three times, within 35 days after it receives your notice.

Texas courts treat the inspection opportunity as mandatory, including for new defects you discover later and add to your case. If you skip notice or refuse an inspection, your lawsuit can be put on hold until you comply.

You can turn down a repair offer, but there are consequences

Within 60 days of your notice, the builder may make a written settlement offer, which can include an offer to repair the defects, either itself or through an independent contractor.

If you think the offer is unreasonable, you must explain why in writing, with reasonable detail, within 25 days. The builder can then make a supplemental offer within 10 days. An offer you do not accept within 25 days is treated as rejected.

Here is the key risk. If you reject an offer, and a judge or jury later decides it was reasonable, then:

  • your recovery is limited to the fair market value of the builder’s last offer (or the amount of a reasonable cash or buy-back offer); and

  • you can recover only the attorney’s fees and costs you incurred before you rejected it.

The same cap applies if you accept a repair offer and then do not give the builder a reasonable chance to make the repairs.

Refusing all repairs can also create problems proving your case. A builder may argue that the homeowner’s refusal, not the original defect, caused some of the losses.

When the cap does not apply

The rules cut both ways. The damage caps do not apply if:

  • the builder’s offer was not reasonable;

  • the builder never made a proper written offer. In one Texas case, a builder that merely said it wanted to finish the work, without a written settlement offer, lost the benefit of the RCLA’s limits on damages; or

  • the builder accepted a deal and then refused to start the repairs.

How to evaluate a repair offer

A repair offer is only reasonable if the repair actually fixes the problem. Questions worth asking:

  • Does the offer fix the cause of the problem, or only cover up the symptoms?

  • Does it cover all the defects in your notice?

  • Who will do the work, and when will it be finished?

  • Does it address damage the defect caused to other parts of the home, such as drywall, flooring or cabinets?

  • What does an independent engineer or consultant say about the proposed repair?

If the answers aren’t satisfactory, put your reasons in writing within the 25-day window. That written response can matter a great deal later.

Emergencies

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 getting written notice. If the builder doesn’t fix it within a reasonable time, you can have it repaired and recover the reasonable cost from the builder, plus attorney’s fees and costs.

What this means for you

  • Don’t ignore a builder’s request to inspect. Respond in writing and schedule it.

  • Don’t accept or reject a repair offer on instinct. Get an independent expert opinion.

  • If you reject an offer, explain why, in writing, within 25 days.

  • Talk to a lawyer before you respond. Your answer can affect the value of your claim.

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.