Texas Construction Defects
Townhome Associations and Construction Defects in Texas
Townhome communities often share roofs, walls, drainage systems, driveways and other common areas. When a construction defect affects many homes at once, owners naturally ask: should we each sue, or should the association handle it?
The short answer
When defects damage areas that the association owns, Texas law generally gives the right to sue for that damage to the association, not to individual owners. These claims are subject to the same pre-suit notice process and deadlines that apply to other residential construction defect claims in Texas.
Common areas belong to the association
A Texas appeals court has held that damages to common areas owned by an association belong to the association. Individual unit owners who wanted to recover for damage to those common areas had to bring the claim on behalf of the association, not in their own names.
This means it helps to sort defects into two groups:
Defects in areas the association owns, such as shared structures or grounds. Claims for these generally belong to the association.
Defects in individual homes. Owners may have their own claims for these.
The association’s governing documents usually spell out what the association owns and what it is responsible for maintaining. Those documents are a good starting point.
The Residential Construction Liability Act applies
Construction defect claims brought by a townhome association are governed by the Texas Residential Construction Liability Act (RCLA). The RCLA’s definition of a “residence” includes:
a townhouse up to three stories with its own separate exit; and
a unit and the common elements in a multiunit building where units are sold under a condominium or cooperative system.
That means the association, like an individual homeowner, generally must:
send the builder written notice by certified mail, return receipt requested, at least 60 days before filing suit or arbitration, describing the defects;
give the builder a reasonable opportunity to inspect, if the builder asks in writing; and
consider any written settlement offer, which may include an offer to repair.
To recover, the association must prove that the defect existed when construction was completed and that the damages were caused by the defect.
Deadlines still apply
Association claims are subject to the same types of deadlines as other defect claims, including statutes of limitations and the statute of repose, which generally sets an outer limit measured from when construction was substantially completed. Because associations need time to investigate, hire experts and coordinate with owners, deadlines can sneak up. Start early.
What this means for your association
Identify which defects affect common areas and which affect individual homes.
Review the declaration, bylaws and plat to confirm what the association owns and maintains.
Hire a qualified engineer or consultant to document the defects and their causes.
Talk to a lawyer about how the association’s claims and owners’ individual claims fit together, and about any approvals the association needs before filing suit.
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 your community has a construction defect problem, talk to a Texas lawyer about your situation.
