CHAPTER 428. STATE-SPONSORED INSPECTION AND DISPUTE RESOLUTION PROCESS
PROPERTY CODE
TITLE 16. TEXAS RESIDENTIAL CONSTRUCTION COMMISSION ACT
SUBTITLE D. STATE-SPONSORED INSPECTION AND DISPUTE RESOLUTION
PROCESS; STATUTORY WARRANTY AND BUILDING AND PERFORMANCE
STANDARDS
CHAPTER 428. STATE-SPONSORED INSPECTION AND DISPUTE RESOLUTION
PROCESS
Sec. 428.001. REQUEST FOR RESOLUTION. (a) If a dispute between
a homeowner and a builder arises out of an alleged construction
defect, the homeowner or the builder may submit to the commission
a written request for state-sponsored inspection and dispute
resolution.
(b) The request must:
(1) specify in reasonable detail each alleged construction
defect that is a subject of the request;
(2) state the amount of any known out-of-pocket expenses and
engineering or consulting fees incurred by the homeowner in
connection with each alleged construction defect;
(3) include any evidence that depicts the nature and cause of
each alleged construction defect and the nature and extent of
repairs necessary to remedy the construction defect, including,
if available, expert reports, photographs, and videotapes, if
that evidence would be discoverable under Rule 192, Texas Rules
of Civil Procedure;
(4) be accompanied by the fees required under Section 426.004;
and
(5) state the name of any person who has, on behalf of the
requestor, inspected the home in connection with an alleged
construction defect.
(c) Not later than the 30th day before the date a homeowner
submits a request under this section, the homeowner must notify
the builder in writing of each construction defect the homeowner
claims to exist. After the notice is provided, the builder must
be provided with a reasonable opportunity to inspect the home or
have the builder's designated consultants inspect the home.
(d) At the time a person submits a request under this section,
the person must send by certified mail, return receipt requested,
a copy of the request, including evidence submitted with the
request, to each other party involved in the dispute.
(e) The commission by rule shall establish methods by which
homeowners may be notified of the name, mailing address, and
telephone number of the commission for the purpose of directing a
request to the commission.
(f) The commission shall provide a person who files a request
with a copy of the commission's policies and procedures relating
to investigation and resolution of a request.
(g) The commission by rule shall establish a standard form for
submitting a request under this section.
(h) The filing of a request under this section tolls the
limitations period in any action between the homeowner and the
builder arising out of the subject of the request until the 45th
day after the date a final, nonappealable recommendation is
issued under this title in response to the request.
Added by Acts 2003, 78th Leg., ch. 458, Sec. 1.01, eff. Sept. 1,
2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
843, Sec. 40, eff. September 1, 2007.
Sec. 428.002. BUILDER'S RIGHT OF INSPECTION. (a) In addition
to the right of inspection provided by Section 428.001(c), at any
time before the conclusion of the state-sponsored inspection and
dispute resolution process and on the builder's written request,
the builder shall be given reasonable opportunity to inspect the
home that is the subject of the request or have the home
inspected to determine the nature and cause of the construction
defect and the nature and extent of repairs necessary to remedy
the construction defect.
(b) The builder may take reasonable steps to document the
construction defect and the condition of the home.
(c) If the homeowner delays the inspection for more than five
days after the date of receiving the builder's written request,
any period for subsequent action to be taken by the builder or
the third-party inspector shall be extended one day for each day
the inspection is delayed after the fifth day.
Added by Acts 2003, 78th Leg., ch. 458, Sec. 1.01, eff. Sept. 1,
2003.
Sec. 428.003. INSPECTION BY THIRD-PARTY INSPECTOR. (a) On or
before the 30th day after the date the commission receives a
request, the commission shall appoint the next available
third-party inspector from the applicable lists of third-party
inspectors maintained by the commission under Subsection (c).
(b) The commission shall establish rules and regulations that
allow the homeowner and the builder to each have the right to
strike the appointment of a third-party inspector one time for
each request submitted.
(c) The commission shall adopt rules that allow for the
commission to maintain a list of available third-party inspectors
for the various regions of the state, as required to satisfy the
provisions of this title.
Added by Acts 2003, 78th Leg., ch. 458, Sec. 1.01, eff. Sept. 1,
2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
843, Sec. 41, eff. September 1, 2007.
Sec. 428.004. INSPECTOR'S RECOMMENDATION. (a) If the dispute
involves workmanship and materials in the home of a nonstructural
matter, the third-party inspector shall issue a recommendation
not later than the 30th day after the date the third-party
inspector receives the appointment from the commission.
(b) If the dispute involves a structural matter in the home, the
commission shall appoint an approved engineer to be the
third-party inspector. The third-party inspector shall inspect
the home not later than the 30th day after the date the request
is submitted and issue a recommendation not later than the 60th
day after the date the third-party inspector receives the
assignment from the commission, unless additional time is
requested by the third-party inspector or a party to the dispute.
The commission shall adopt rules governing the extension of time
under this subsection.
(c) The third-party inspector's recommendation must:
(1) address only the construction defect, based on the
applicable warranty and building and performance standards; and
(2) designate a method or manner of repair, if any.
(d) Except as provided by this subsection, the third-party
inspector's recommendation may not include payment of any
monetary consideration. If the inspector finds for the party who
submitted the request, the commission may order the other party
to reimburse all or part of the fees and inspection expenses paid
by the requestor under Section 426.004.
(e) The commission may not require a builder to reimburse fees
or inspection expenses under this section if, before the
inspection, the builder offered to make repairs or have repairs
made substantially equivalent to those required by the findings
of the final report confirming the defect requiring repair.
(f) If, before the inspection, the builder has made or offered
to make repairs substantially equivalent to those required by the
findings of the final report confirming the defect, the agency
may not list the finding on the commission's Internet website.
Added by Acts 2003, 78th Leg., ch. 458, Sec. 1.01, eff. Sept. 1,
2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
843, Sec. 42, eff. September 1, 2007.
Sec. 428.005. THREAT TO HEALTH OR SAFETY. A builder who
receives written notice of a request relating to a construction
defect that creates an imminent threat to the health or safety of
the inhabitants of the residence shall take reasonable steps to
cure the defect as soon as practicable. If the builder fails to
cure the defect in a reasonable time, the homeowner may have the
defect cured and recover from the builder the reasonable cost of
the cure plus reasonable attorney's fees and expenses associated
with curing the defect in addition to any other damages not
inconsistent with this subtitle.
Added by Acts 2003, 78th Leg., ch. 458, Sec. 1.01, eff. Sept. 1,
2003.