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Texas Construction Defects

Texas Construction Defect Deadlines: The Statute of Limitations and the Statute of Repose

If you have found cracks in your foundation, a leaking roof or water behind your walls, one of the first questions to ask is: how much time do I have? In Texas, the answer is not one number. It depends on the kind of legal claim you bring, when you discovered the problem, and when your home was finished.

Missing a deadline can end a claim completely, no matter how serious the defect is. This article explains the deadlines in plain terms.

The short answer

  • Negligence claims: generally 2 years.

  • Deceptive Trade Practices Act (DTPA) claims: generally 2 years.

  • Breach of contract, breach of warranty and fraud claims: generally 4 years.

  • The outer limit for any claim (the “statute of repose”): generally 10 years after the home was substantially completed, and as short as 6 years for homes that came with a qualifying written warranty from the builder.

Two different kinds of deadlines

Texas law uses two kinds of deadlines, and both can apply to the same case.

A statute of limitations is the deadline to file a particular type of claim. Its clock usually starts when the claim “accrues,” which in defect cases is often when you knew, or reasonably should have known, about the damage.

A statute of repose is a hard outer wall. Its clock starts when construction is substantially complete, and it runs whether or not anyone has discovered the defect. Once it expires, most claims are barred, even if you only found the problem yesterday.

Think of it this way: the statute of limitations asks, “How long have you known about the problem?” The statute of repose asks, “How old is the house?” You have to satisfy both.

Deadlines by type of claim

Negligence: 2 years

Claims that a builder carelessly damaged your property must generally be filed within two years (Texas Civil Practice and Remedies Code section 16.003). Texas courts have applied this two-year period to negligence claims in construction defect cases.

DTPA claims: 2 years

Claims under the Texas Deceptive Trade Practices Act must generally be filed within two years after the deceptive act happened, or within two years after you discovered it or reasonably should have discovered it. That period can be extended by 180 days if the builder knowingly did something designed to get you to hold off on filing suit (Texas Business and Commerce Code section 17.565).

Breach of contract, warranty and fraud: 4 years

Claims that the builder broke the contract or an express warranty, or committed fraud, generally have a four-year deadline (Texas Civil Practice and Remedies Code section 16.004). A breach of contract claim generally starts running when the contract is breached. In construction cases, courts often treat that as the date the project was substantially completed, not the date you noticed the problem.

When does the clock start? Don’t count on “I didn’t know”

Many homeowners assume the clock does not start until they understand exactly what is wrong. That is risky. Texas courts have said that, in general, the limitations period begins when an owner becomes aware of damage to the property. J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322 (Tex. App. 2002). In that case, the court held that a homeowner’s negligence and DTPA claims accrued when the homeowner, using reasonable diligence, should have discovered the contractor’s wrongful acts or omissions. A rule that delays the start of the clock (called the “discovery rule”) generally applies when the injury was inherently undiscoverable.

Because construction defects are often hidden, Texas courts recognize the discovery rule as a way to pause (toll) the statute of limitations until you knew or should have known about the defect. It does not pause the statute of repose, discussed below. The rule applies in construction cases where the injured party could not have known of the wrongful act until after the limitations period would otherwise have expired. Dallas Market Center Hotel Co. v. Beran & Shelmire, 865 S.W.2d 145 (Tex. App. 1993).

The outer limit: the statute of repose

Regardless of the type of claim, a lawsuit against the person who built or repaired your home generally must be filed within 10 years after the work was substantially completed (Texas Civil Practice and Remedies Code section 16.009). This covers claims for damage to your home and property, personal injury and wrongful death.

The discovery rule cannot extend the statute of repose (50 Tex. Jur. 3d Limitation of Actions § 4). Courts do not apply judge-made tolling or deferral rules to a statute of repose. Once its deadline passes, it ends the right to sue itself, not just the remedy. Only the extensions written into the statute, listed below, can change that.

The six-year rule for some homes

For homes, additions, alterations and repairs, the outer limit drops to 6 years if the builder gave you a written warranty that meets minimum standards set by the statute:

  • at least 1 year for workmanship and materials;

  • at least 2 years for plumbing, electrical, heating and air-conditioning systems; and

  • at least 6 years for major structural components.

If your builder did not give you a warranty that meets those minimums, the 10-year period generally applies. For this rule, a “residence” includes a detached one- or two-family home, a townhouse up to three stories with its own exit, and accessory structures up to three stories. Because this area of law has recently changed, which deadline applies can depend on when your home was built and what warranty you received.

Ways the outer limit can be extended

The statute of repose has some important extensions and exceptions:

  • Written claim to the builder. If you give the builder a written claim for damages before the repose period runs out, the deadline is extended. For residential claims, the extension is one year from the date of the written claim.

  • Damage in the final year. If the damage first occurs during the last year of the repose period, you have two years from the date the claim accrues to file suit.

  • Longer written warranty. The repose period does not bar a claim on a written warranty that expressly lasts longer.

  • Willful misconduct or fraudulent concealment. The repose period does not bar claims based on willful misconduct or on the builder hiding defects.

Claims against architects, engineers, interior designers and landscape architects who designed, planned or inspected the work have their own 10-year outer limit (Texas Civil Practice and Remedies Code section 16.008).

Don’t forget the 60-day notice

Before suing a builder over a home defect, Texas law generally requires you to send the builder written notice at least 60 days before filing suit, under the Residential Construction Liability Act (RCLA). That 60 days has to fit inside your deadline. If a deadline is about to expire, the law allows a lawsuit to be filed without waiting, and the case can then be paused while the notice process is completed.

What this means for you

  • Write down when you first noticed each problem, and keep photos with dates.

  • Find your closing documents and any warranty booklet. The date of substantial completion and the terms of your warranty can decide which deadline applies.

  • Don’t wait for the problem to “get worse” before talking to a lawyer. The clock may already be running.

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