In Texas, construction defects by homebuilders are governed by pre-suit procedures found in RCLA. Arguably, defects by home remodelers are also governed by RCLA. Hector Chavana Jr. is an attorney who has been published by the Consumer and Commercial Law Section of the State Bar of Texas on the subject of builder warranties and construction defects. You can set up an appointment with Hector Chavana Jr. at 713-979-2941. This post is intended to be a helpful checklist of some of what must go into a pre-suit notice in Texas.
Importantly, RCLA applies only to residential construction defects, and it expressly does not apply to statutory real estate fraud or wrongful abandonment of a project. A question could arise as to whether an implied warranty should pass to a subsequent buyer. Some case law says yes (Gupta). Other case law says no (PPG Industries). RCLA seems to indicate that it should. §§ 27.02(a)(2) and §§ 27.02(b).
Prior to suit, a notice to the contractor should contain the following (according to 27.04):
- the claimant shall give written notice by certified mail, return receipt requested, to the contractor, at the contractor’s last known address, specifying in reasonable detail the construction defects that are the subject of the complaint;
- the claimant shall provide to the contractor any evidence that depicts the nature and cause of the defect and the nature and extent of repairs necessary to remedy the defect, including expert reports, photographs, and videotapes, if that evidence would be discoverable under Rule 192, Texas Rules of Civil Procedure;
- During the 35-day period after the date the contractor receives the notice, and on the contractor’s written request, the contractor shall be given a reasonable opportunity to inspect and have inspected the property that is the subject of the complaint to determine the nature and cause of the defect and the nature and extent of repairs necessary to remedy the defect. The contractor may take reasonable steps to document the defect.
The rest of RCLA deals with what happens after the notice goes out. One of RCLA’s purposes is to encourage the contractor and the consumer to come to an arrangement rather than filing suit and asking questions later. RCLA gives the contractor an opportunity to inspect the property, and to make a reasonable settlement offer. If the contractor provides a reasonable offer, the consumer has little incentive to sue because the cost of attorney’s fees incurred after the offer are not recoverable by the consumer if the settlement offer is later found to be reasonable.