Texas Construction Defects: Why the 60-Day Notice Matters

Cracks in the foundation, water behind the walls, a roof that fails after the first big storm. If you bought or built a home in Texas and the work was defective, the first legal step is often the one homeowners skip: written notice to the builder.

The 60-day notice

The Texas Residential Construction Liability Act, in Chapter 27 of the Property Code, generally requires a homeowner to send the contractor written notice by certified mail, return receipt requested, at least 60 days before filing suit. The notice must describe the defects in reasonable detail and include discoverable evidence such as expert reports, photographs and recordings (§ 27.004(a)).

There are exceptions. If a limitations deadline is about to run, a claimant may be allowed to file suit first, and counterclaims are treated differently. Do not rely on an exception without checking.

What happens after you send it

The contractor can ask to inspect the property, and it may make a written settlement offer, which can include repairs. If you consider the offer unreasonable, the statute requires you to explain why in writing. If you reject a reasonable offer, or refuse to allow inspection or repairs under an accepted offer, your recovery can be limited (§ 27.004). If the contractor does not make a reasonable offer, those limits generally do not apply.

Why the notice matters in court

If a builder shows that the notice requirements were not followed, a court can abate the lawsuit, which means pausing it until the homeowner complies. A verified motion from the contractor can trigger an automatic abatement unless the homeowner responds in time (§ 27.004(d)). That costs time and money, and it can give the builder leverage.

The longer clocks

Notice is only one clock. Texas also sets:

• Limitations periods for the claims themselves. Negligence and Deceptive Trade Practices Act claims generally carry two years, and breach of contract generally carries four.

• A statute of repose. Suit against those who construct or repair improvements to real property generally must be filed within 10 years after substantial completion, with limited extensions and exceptions (Civ. Prac. & Rem. Code § 16.009).

Practical steps for homeowners

1. Photograph and document the defects, and note when you first noticed each one.

2. Keep your contract, warranty, change orders and all communications with the builder.

3. Do not repair or tear out the problem without documenting it first, because evidence disappears.

4. Consider an independent inspection or engineer's report, since the notice must include supporting evidence.

5. Send the notice by certified mail and keep the receipt.

6. Check your homeowner's policy. Many policies exclude the defect itself but may cover resulting damage.

If you are dealing with a construction defect in San Antonio or Laredo, see our page on construction defect claims, or call (210) 660-8548.

This post is general information, not legal advice, and reading it does not create an attorney-client relationship. Commercial construction claims follow different rules, and exceptions may apply to you. Attorney advertising. Prior results do not guarantee a similar outcome. Christian A. Davila Cobos, San Antonio, Texas, is responsible for the content of this post.