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:
1) obtain an inspection and written independent third-party report from a licensed professional engineer that:
(a) identifies the specific units or common elements subject to the claim;
(b) describes the present physical condition of the units or common elements subject to the claim; and
(c) describes any changes to the units or common elements performed by unit owners or the association; and
2) obtain the approval of more than 50 percent of the unit owners at a meeting held on a least 30 days written notice, notice that must include specific information but which cannot be prepared by the attorney who represents or will represent the association in the claim;
3) provide written notice of the inspection to be conducted by the engineer, notice that must, again, include specific information, to each party subject to a claim at least 10 days prior to the date of the inspection; and
4) allow each party subject to a claim at least 90 days after the completion of the engineer’s report to inspect and correct any condition identified in the report.
Subrogating insurers are not referenced in § 82.119 as parties that need to comply with the dictates of § 82.119. However, because Texas’ Right to Repair statute specifically mentions subrogating insurers, see Tex. Prop. Code § 27.003(a)(2), insurers insuring condominium associations with eight or more units should, in the exercise of caution, comply with the requirements of § 82.119 prior to filing suit or initiating arbitration to resolve a claim pertaining to the construction or design of a condominium unit or the condominium’s common elements.