How to File a Construction Defect Claim in Texas

Construction defects can turn a successful building project into a costly dispute. Foundation problems, water intrusion, defective materials, design errors, code violations, and poor workmanship can lead to expensive repairs, delays, lost use of property, and disagreements over who should bear the financial responsibility.

If you discover a potential construction defect, knowing how to file a construction defect claim in Texas can help you protect your rights and avoid mistakes that could affect your ability to recover damages.

Construction defect disputes can involve property owners, developers, general contractors, subcontractors, architects, engineers, manufacturers, and other parties. Determining responsibility may require a careful review of contracts, construction documents, communications, inspections, and applicable Texas law.

Patout, Fontana, and Dellis PLLC represents parties involved in construction defect disputes throughout Texas. Our construction law attorneys help property owners, contractors, developers, subcontractors, and design professionals understand their options and pursue an appropriate strategy for resolving construction claims.

What Is a Construction Defect Claim in Texas?

A construction defect claim generally arises when there is an alleged deficiency in the design, construction, repair, or materials associated with a property or improvement.

Construction defects may be immediately noticeable, while others may remain hidden until months or years after construction is complete.

Common construction defects can include:

• Foundation cracking, shifting, or settlement
• Water intrusion and inadequate waterproofing
• Roofing defects and leaks
• Defective building materials
• Electrical or plumbing problems
• HVAC installation issues
• Structural deficiencies
• Improper drainage
• Design errors or omissions
• Poor workmanship
• Failure to follow plans or specifications
• Building code violations
• Soil or subsurface problems

Identifying a problem does not necessarily establish who is legally responsible for it. Several companies and professionals may have participated in a project, making determining the cause of a defect and the responsible parties an important part of developing a construction defect claim.

The attorneys at Patout, Fontana, and Dellis PLLC can review the circumstances surrounding a construction dispute and help clients evaluate potential claims, defenses, and available options.

Step 1: Document the Construction Defect

One of the first things to do after discovering a suspected construction defect is document the condition.

Avoid relying solely on verbal descriptions of the problem. Depending on the circumstances, useful documentation may include:

• Photographs and videos
• Construction contracts
• Plans and specifications
• Change orders
• Inspection reports
• Invoices and payment records
• Repair estimates
• Warranties
• Emails and text messages
• Communications with contractors and subcontractors
• Records showing when the problem was first discovered

Keeping a timeline can also be helpful. Record when you first noticed the defect, who you contacted, what responses you received, and whether repairs were attempted.

For certain residential construction claims governed by Chapter 27 of the Texas Property Code, a claimant may also need to provide the contractor with evidence depicting the nature and cause of the defect and necessary repairs when that evidence would be discoverable under Texas procedural rules.

Thorough documentation can make it easier for your attorney to understand what occurred and determine what additional investigation may be necessary.

Step 2: Review the Construction Contract

Construction contracts can significantly affect how a defect dispute proceeds.

Before filing a lawsuit, review the relevant agreements for provisions concerning:

• Warranties
• Notice requirements
• Claims procedures
• Inspection and repair rights
• Indemnification
• Insurance
• Mediation
• Arbitration
• Litigation
• Deadlines
• Responsibility for particular portions of the work

Commercial projects may involve multiple agreements between owners, developers, general contractors, subcontractors, suppliers, architects, and engineers.

Determining which agreements apply and how their provisions interact can become complicated.

Patout, Fontana, and Dellis PLLC works with participants throughout the construction industry and can review project contracts to determine how contractual provisions may affect a construction defect dispute.

Step 3: Determine What Caused the Defect

Knowing that something went wrong is only part of a construction defect claim. Determining why it went wrong is often critical.

For example, water entering a commercial property could potentially result from defective roofing, inadequate flashing, poor waterproofing, improper installation, a design issue, or another cause.

Likewise, foundation damage might involve construction practices, engineering decisions, drainage, soil conditions, or several contributing factors.

The cause can affect which parties may potentially bear responsibility.

Depending on the project, potentially involved parties may include:

• General contractors
• Subcontractors
• Developers
• Architects
• Engineers
• Designers
• Material suppliers or manufacturers
• Property owners

Texas law applicable to residential construction defect actions requires a claimant to establish that the defect existed when the construction, alteration, or repair was completed and that the claimed damages were proximately caused by the defect.

A construction attorney can help evaluate the available records and determine what additional investigation may be appropriate before pursuing a claim.

Step 4: Identify the Potentially Responsible Parties

Construction projects frequently involve numerous businesses and professionals.

For example, a general contractor may oversee a project while separate subcontractors handle plumbing, electrical systems, roofing, concrete, HVAC, and other work. Architects and engineers may be responsible for particular design or engineering services.

As a result, a construction defect dispute may involve claims against more than one party.

Identifying the appropriate parties early can help prevent unnecessary delays and ensure that a claim is directed toward those who may actually be responsible.

Patout, Fontana, and Dellis PLLC represents clients on both sides of construction defect disputes, providing the firm with a broad understanding of the issues that can arise among owners, contractors, subcontractors, developers, and design professionals.

Step 5: Determine Whether Texas Construction Defect Notice Requirements Apply

Before filing certain construction defect lawsuits, Texas law may require specific notice procedures.

Chapter 27 of the Texas Property Code—the Residential Construction Liability Act—applies to many actions seeking damages or other relief arising from residential construction defects.

Under Section 27.004, a claimant generally must provide written notice to the contractor at least 60 days before initiating an action. The notice must be sent by certified mail, return receipt requested, to the contractor's last known address and describe the alleged construction defects in reasonable detail.

After receiving notice, the contractor can request an opportunity to inspect the property. Texas law provides for an inspection period and permits the contractor, under applicable circumstances, to conduct up to three inspections during that period.

These requirements make it important to understand the applicable process before immediately filing suit.

Because construction disputes differ depending on the type of project, contracts, parties, and claims involved, consider speaking with Patout, Fontana, and Dellis PLLC before sending a formal construction defect notice or initiating litigation.

Step 6: Consider Repair or Settlement Offers

A construction defect claim does not automatically have to result in a trial.

Depending on the circumstances, a contractor may propose repairs, monetary compensation, or another form of settlement after receiving notice of the alleged defect.

Any proposed resolution should be evaluated carefully.

Questions to consider can include:

• Will the proposed repairs fully address the problem?
• Who will perform the repairs?
• Who will pay associated costs?
• Could additional damage exist?
• Does accepting the proposal require releasing other claims?
• Does the proposed settlement account for the full extent of the damages?
• Could other parties also bear responsibility?

Before accepting a significant repair or settlement proposal, consider having a construction lawyer review its terms and potential consequences.

Patout, Fontana, and Dellis PLLC can help clients assess settlement proposals and determine whether negotiation, mediation, arbitration, or litigation may better serve their interests.

Step 7: Understand the Potential Damages

The damages available in a construction defect dispute depend on the circumstances and legal basis for the claim.

Potential damages may involve costs associated with repairing defective construction and resulting property damage, among other losses permitted by applicable law.

Residential claims governed by Chapter 27 are subject to specific statutory rules regarding contractor liability and recoverable damages.

Accurately evaluating damages is important before deciding how to pursue a claim. Settling a dispute without understanding the scope of necessary repairs or other losses could result in an agreement that does not adequately address the problem.

Step 8: Pay Attention to Construction Defect Deadlines in Texas

Waiting too long to address a construction defect can create serious legal problems.

Texas construction claims may be subject to statutes of limitations as well as statutes of repose. The applicable deadline can depend on the claim, defendant, project, contract, and other circumstances.

For example, Texas Civil Practice and Remedies Code Sections 16.008 and 16.009 generally establish a 10-year statute of repose for certain claims involving architects, engineers, and persons who construct or repair improvements to real property, subject to statutory exceptions and different rules for certain claims.

A statute of repose is not necessarily the same thing as the deadline applicable to every construction defect claim. A shorter limitations period may apply depending on the cause of action and circumstances.

For that reason, property owners and construction professionals should avoid assuming they have ten years to pursue a claim.

Contacting Patout, Fontana, and Dellis PLLC promptly after discovering a potential defect allows an attorney to evaluate which deadlines may apply to your particular situation.

Step 9: Attempt to Resolve the Construction Defect Dispute

Construction defect disputes can potentially be resolved through several methods.

Depending on the contract and circumstances, these may include:

Negotiation

The parties may negotiate directly or through their attorneys to reach an agreement regarding repairs, payment, or other remedies.

Mediation

A neutral mediator can help the parties discuss their positions and explore a negotiated settlement.

Arbitration

Some construction contracts require disputes to be decided through arbitration rather than traditional court litigation.

Litigation

When an acceptable resolution cannot be reached, filing or pursuing a lawsuit may become necessary.

The right approach depends on the nature and value of the dispute, the applicable contracts, the parties involved, and the available evidence.

Patout, Fontana, and Dellis PLLC represents clients in construction disputes and can help determine an appropriate strategy based on the circumstances of the case.

Do You Need a Construction Defect Attorney in Texas?

Construction defect claims can quickly become complicated, particularly when multiple contractors, subcontractors, design professionals, insurers, and property owners are involved.

A construction attorney can assist with matters such as:

• Reviewing construction contracts
• Evaluating potential claims and defenses
• Identifying potentially responsible parties
• Reviewing construction records and evidence
• Addressing statutory notice requirements
• Communicating with contractors and other parties
• Evaluating repair and settlement proposals
• Negotiating construction disputes
• Preparing for mediation or arbitration
• Pursuing or defending construction defect litigation

Getting legal guidance early may also help prevent procedural mistakes that could complicate the dispute later.

Houston Construction Defect Attorneys Serving Clients Throughout Texas

Construction defects can lead to substantial repair expenses and complicated questions about contractual and legal responsibility. Whether you are a property owner pursuing a claim or a construction professional responding to one, having knowledgeable legal representation can help you understand your rights and determine the appropriate path forward.

Patout, Fontana, and Dellis PLLC is a Houston law firm serving clients throughout Texas, with a practice that includes construction law and construction defect disputes. The firm represents property owners, developers, contractors, subcontractors, design professionals, and other participants in the construction industry.

If you have discovered a potential construction defect or are facing a claim from another party, contact Patout, Fontana, and Dellis PLLC to discuss your situation.

Contact Patout, Fontana, and Dellis PLLC Today

Don't wait until a construction defect dispute becomes more difficult or costly to address. Patout, Fontana, and Dellis PLLC can review your situation, explain your legal options, and help you determine the next steps for pursuing or defending a construction defect claim in Texas.

Call Patout, Fontana, and Dellis PLLC at 346-460-5528 today to schedule a consultation with a Texas construction law attorney.