There are horrible residential contractors and builders who cause damage and heartache throughout the state of Texas. As a Texas residential defect construction attorney, I can’t say that I’ve seen it all, but I have come pretty darn close. A typical residential damage client will report a variety of egregious “patent defects” such as foundation shifting, collapsing roofs or water intrusion, boughing walls, protruding cracks in the floors or concrete – you name it. The term – patent defect – refers to those construction mistakes which are obvious and clearly visible.
But what happens when the Texas construction defect is hidden – either unintentionally or in rare cases – deliberately. This is an issue which comes up frequently and is the most disturbing to clients.
Let’s start with a basic definition and some examples. A latent defect refers to those construction defects which can not be easily detected by the home purchaser and the inspector hired before the home closing. Examples include an ongoing water leak behind the walls which will ultimately cause the intrusion of mold – particularly “black” mold which can be deadly. I see these cases several times a month.
Other instances of latent defects are found hidden below the surface of the floor – the foundation itself. Most consumers are unaware of the complexity of concrete and its preparation/installation. If the concrete is not properly mixed or applied, it will ultimately fail causing massive damage to a new home. These defects are the most severe and can literally render the new home uninhabitable. Additionally, pouring the concrete when there is precipitation can also cause the foundation to crack or fail. Weather is one of the most overlooked causes of concrete failure.
Latent construction defects cause the most heartache to Texas residential purchasers as the adverse effects often occur years after the purchase and after the home warranty has expired. Texas home builders almost always – in my experience – outright refuse to address the severe damage caused by latent defects arguing that either the warranty is inapplicable due to the passage of time or that the statute of limitations to bring a legal claim has passed.
The statute of limitations requires that a lawsuit be brought against a contractor or builder within a set period of time or the right to sue is lost. Typical lawsuits include the following statute of limitations:
- Negligent Residential Home Construction – 2 years.
- Breach of Contract – Four Years.
- Fraud – Four Years.
In the usual horror story, the client discovers the mold and leak after four years. This almost always applies to construction defects relating to foundation failure. The source of the bad news is invariably the home builder who could care less and has moved on to new customers and transactions.
Fortunately, there are several legal approaches which will offer these aggrieved home purchasers legal rights against the builder. Here are a few remedies to consider:
This is a little known or understood statute which gives home purchasers a ten-year period to bring a legal claim for defective construction after which all remedies will be extinguished. The key is to bring the Texas construction defect claim timely or all will be lost. That said, I view this statute as being positive in that almost all claims of which I have been presented have not been cut off by this statute and there is still hope for the clients. Keep in mind that the timeline runs from the date of substantial completion.
2. Builder Warranties Shorten the Time to Bring Construction Defect Claim –
Warning! The Texas legislature just altered the above ten-year rules to just six-years when the contractor provides a written warranty. Consider this to be a Christmas present to the residential builder lobby and very bad news for consumers. It sure is. The import of this new law is that homeowners must be particularly vigilant.
3. What if the Texas construction defect is fraudulent concealed?
This means that the builder has deliberately and intentionally covered his/her/its tracks to hide the defect. In these situations, the contractor pours concrete over a gaping hole or extra insulation to shield the discovery of leaking pipes. Other typical concealment activities include the deliberate failure to comply with building codes, use of unlicensed electrical contractors, toxic substances used in building materials – and the list goes on.
In these situations, a rule known to lawyers as the “discovery doctrine” applies which logically means that the statute of limitations or statute of repose do not apply until the date of discovery by the homeowner. This means the actual date that the homeowner becomes aware or should have become aware of the defect. Thus, this is a limited exception to the deadlines to bring a legal claim and courts will look at whether conditions were present at the home which should have alerted the homeowner that a defect was present. This is a very active area of litigation.
4. The expiration of the statute of limitation is not the death knell of your case.
This is extremely important for homeowners to understand. The statute of limitations to bring a lawsuit – say four years for breach of contract – is not the definitive end of your case. Your rights extend to possibly ten years or even longer from the date of discovery.
The bottom line is that homeowners have multiple remedies to employ in going after rogue Texas homebuilders. Contractors almost always care less about your home construction defects after closing and the reaction is heartbreaking for home purchasers.
Don’t take no for an answer and most certainly – don’t give up.
Seek out the advice of an experienced Texas residential home construction attorney.
At the Moster Law Firm, we will search for a creative and aggressive way to go after rogue homebuilders. Give us a call for a complementary and comprehensive consultation. We will even review your contract!
