In Brooks v. CalAtlantic Homes of Texas, Inc., 2017 Tex. App. Lexis 9466, the Court of Appeals of Texas considered whether a defendant moving for summary judgment on the grounds that the statute of repose expired also bears the burden of establishing the absence of applicable exceptions to the statute of repose. In Texas, a plaintiff alleging a construction defect in an improvement to real property must file a lawsuit within ten years of the date of substantial completion of the improvement. Continue reading
There has been a growing trend among states to enact statutes that impose specific notice requirements when bringing claims against construction professionals. These notice requirements may apply to the subrogated carrier bringing a claim against a construction professional for certain types of damages. Failure to comply with the notice requirements can result in a dismissal of the subrogation action. Accordingly, caution must be exercised when notifying construction professionals of certain claims, and not just claims for construction defects.
In Zbranek Custom Homes, Ltd. v. Joe Allbaugh, et al., No. 03-14-00131-CV, 2015 WL 9436630 (Tex.App.-Austin Dec. 23, 2015), the Court of Appeals of Texas, Austin, considered the circumstances under which a general contractor can be held liable for injuries to a non-contracting party’s property. The court held that, because the general contractor, Zbranek Custom Homes, Ltd. (Zbranek), exercised control over the construction of the fireplace at issue, Zbranek owed a duty of care to the first lessees of the home that Zbranek built.
Many states, including Texas, have Right to Repair statutes that require homeowners to provide notice and an opportunity to repair construction defects to home builders, including contractors who build condominiums. See, e.g. Tex. Prop. Code §§ 27.001 to 27.007. With respect to condominium-related construction defect claims, Texas recently adopted additional procedural requirements that a condominium association with eight or more units must comply with “before filing suit or initiating an arbitration proceeding to resolve a claim pertaining to the construction or design of a unit or the common elements” of a condominium. See Tex. Prop. Code § 82.119 (eff. Sept. 1, 2015). Prior to filing suit or initiating an arbitration proceeding, condominium associations subject to § 82.119 must, among other things: