Construction Law is one of the frustrating areas for our clients who have spent hundreds of thousands of dollars on their dream home which turns into a nightmare because of construction defects by homebuilders. You never see it all, but we have experienced (through the eyes of our clients) defective foundations, failure to put in reinforcing steel as required by State and County Law, failure to follow building plans, rooms with the wrong specifications, leakage of dangerous materials, collapsing foundations and ceilings, uncompacted soil, broken sprinkler, rodent infestation, etc. And the list goes on.
What comes next requires an experienced attorney who routinely handles this area of the law. This has been our concentration for many years, and we understand the specific requirements under state law, particularly the RCLA or Residential Construction Liability Act. This statute is not well understood by homeowners and even some attorneys. It was originally passed by the Homebuilder’s Lobby in Texas in an attempt to limit the rights of homeowners in seeking recourse against residential contractors for defective construction.
The RCLA provides for a series of back-and-forth communications and notices between the homeowner and contractor/builder of the residential property which must be followed precisely. Initially, the homeowner is required to set forth in detail the specific defects relating to the property. The contractor is then given an opportunity to respond and propose a settlement that can be accepted or rejected by the homeowner. The contractor is also permitted to request an inspection of the property to better ascertain the nature of the underlying defects and how they might be addressed.
These notice provisions and responses must have complied with exactitude or the ability to recover damages by the homeowner will be impaired. Moreover, if a lawsuit is filed without compliance prior to the expiration of 60 days, the action can be kicked out of court through a process known as an abatement. All of this can result in the needless incurrence of attorney’s fees and, mostly, the inability to recover damages to repair or replace the property. The point of all this is that without the assistance of experienced counsel, an aggrieved homeowner can lose the battle before it even begins. Our job is to make sure that never happens.
In situations where construction has been substantially completed, the RCLA provides a good mechanism to bring the parties together and resolve the dispute in the absence of litigation which is always the preferred option.
When the client is facing construction that has not been substantially completed, typically 50% or less, negotiations are often unsuccessful given the magnitude of the damages and work which needs to be done. In these cases, litigation is often the only option although attorney fees can be recovered under Texas law.
It is also important to understand that the RCLA applies to other types of construction including additional structures, pools and recreation areas, and other improvements. This area of the law is confusing and another reason why it makes sense to consult an experienced attorney to advise as to the next steps.
Bottom line is that construction law is a complex area and should only be performed by experienced attorneys. Feel comfortable that we can guide you through the process of recovery from beginning to end.