Who owns the claim, which statute governs your building, and what the clock is already doing
SHORT ANSWER
Defects inside your unit’s boundaries are generally your claim. Defects in the common elements are the association’s claim. That includes the foundation, the frame, the roof, the building envelope, the parking structure, the shared systems, and, to most owners’ surprise, the balconies. Texas Property Code Section 82.052(4) makes balconies, patios, porches, and exterior doors and windows designed to serve a single unit limited common elements, and limited common elements are still common elements.
Three things decide the rest. Your declaration, which controls and is read first. The recording date of that declaration, because Chapter 82 applies only to condominiums recorded on or after January 1, 1994. And the calendar, because the statute of repose runs from substantial completion and does not care when you discovered the problem.
If a Houston condominium or HOA building is leaking, cracking, or shedding balconies, the first question is not who to sue. It is who owns the claim. In most buildings, the damage that shows up inside a unit starts somewhere the owner does not control: the roof, the foundation, the exterior envelope, the balcony waterproofing, the parking structure, or the shared mechanical systems. Those are common elements, and claims over them generally belong to the association, not to the owner staring at the stained ceiling. Getting that answer wrong at the start costs associations more than any other mistake I see.
This page covers what condominium and HOA defect claims actually look like in Texas, how they differ from an ordinary homeowner’s claim, which deadlines are running right now, and what a board should do first.
Puntos clave
- The declaration controls, and the Property Code fills the gaps. Section 82.052 supplies a default boundary rule for anything the declaration leaves open.
- Balconies are association territory. Section 82.052(4) allocates them exclusively to the unit they serve, but they remain limited common elements, which are a category of common element.
- Check the recording date before anything else. Chapter 82 applies to condominiums whose declaration was recorded on or after January 1, 1994. Older Houston buildings run on Chapter 81 plus a short list of borrowed sections.
- Your declaration can send the claim to arbitration, and you cannot amend your way out. Section 82.120 permits the requirement and bars retroactive amendments that remove it.
- The pre-suit process is a project, not a form. An independent engineer’s report, a ten-day inspection notice, a ninety-day cure window, a thirty-day meeting notice, and a vote of owners holding more than half of all allocated votes.
- Repose is the deadline that ends cases. It runs from substantial completion regardless of when anyone discovered the defect, and Section 82.119(h) does not toll it.
- Fees shift to the prevailing party in both directions. Section 82.161(b) is mandatory, and the Texas Supreme Court has confirmed a defendant collects under it by winning a take-nothing judgment.
- The Residential Construction Liability Act caps what you recover, and a settlement offer you ignore for twenty-five days is deemed rejected.
The statutes that decide a Texas condo defect case
Six provisions do most of the work. A board that understands these six understands its own case.
| Authority | What it does | Why a board cares |
|---|---|---|
| Tex. Prop. Code § 82.002 | Sets which condominiums Chapter 82 governs and lists the sections that reach back to pre-1994 buildings | Decides whether the rest of this page applies to you at all |
| Tex. Prop. Code § 82.052 | Supplies default unit boundaries and defines limited common elements | Decides whether the defect is yours or the association’s |
| Tex. Prop. Code § 82.102(a)(4) | Lets the association sue in its own name on matters affecting the condominium | The association’s standing to bring the case |
| Tex. Prop. Code § 82.119 | Imposes the pre-suit engineer report, notice, cure window, and owner vote | Six to nine months of work before anyone files |
| Tex. Prop. Code § 82.161(b) | Shifts attorney’s fees to the prevailing party | Cuts against the association if it loses |
| Tex. Prop. Code ch. 27 (RCLA) | Governs residential construction defect claims and caps recoverable damages | Sets the ceiling on the recovery |
| Tex. Civ. Prac. & Rem. Code § 16.009 | Statute of repose running from substantial completion | The hard outer deadline |
Why is a condo or HOA defect claim different from a homeowner’s claim?
A single homeowner with a cracked slab has one property, one builder, and one decision maker. An association has none of that. It has shared building components, dozens or hundreds of owners with different appetites for cost and risk, a board carrying fiduciary duties, a governing declaration that may or may not permit the suit, a reserve fund that has to pay for the investigation before anyone recovers a dollar, and a mortgage market that reacts badly to the phrase “pending construction defect litigation.”
That last point deserves a board’s attention early, and the Legislature agreed. Before owners vote on whether to sue, Texas requires the association’s notice to state that initiating a lawsuit or arbitration may affect the market value, marketability, or refinancing of a unit while the claim is prosecuted. Tex. Prop. Code § 82.119(f)(6). A board that files without having that conversation invites a second fight, this one with its own members.
COLBY, IN PLAIN ENGLISH
The person with the damage and the person with the claim are usually two different people
Here is the call I get most often. A guy is furious, and he has every right to be. His ceiling is stained, his floors are ruined, he has been fighting with the property manager for fourteen months, and he wants to know who he sues. And I have to tell him something he does not want to hear: the water is not coming from your property. It is coming from everybody’s property.
You own the paint. You do not own what is behind the paint. That is not me being clever, that is Section 82.052. So the person with the damage and the person who owns the claim are two different people standing in the same building, and until somebody sorts that out, nothing happens. Nobody hires an engineer, nobody sends a notice, and the clock keeps running.
Figure out which one you are before you spend a dollar on anything else.
Where does a unit end and where do the common elements begin?
The declaration draws the line, and owners are bound by it
This is the first document I read, and it answers the first question. Owners of condominium units accept the terms, conditions, and restrictions in the condominium’s declaration by accepting deeds to their individual units. Daly v. River Oaks Place Council of Co-owners, 59 S.W.3d 416, 418 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Where the declaration is silent, Section 82.052 fills the gap
Default boundary rule under Tex. Prop. Code § 82.052. A declaration or plat may provide otherwise.
It is drawn in your brand navy with a gold accent, it cites the statute subsection by subsection, and every label is real vector text rather than generated pixels, so it stays crisp at any size and is selectable and indexable.
Except as the declaration or plat provides otherwise, if walls, floors, or ceilings are designated as unit boundaries, then the lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials making up the finished surfaces belong to the unit. Everything behind them belongs to the common elements. Tex. Prop. Code § 82.052(1). That is why a leak that ruins an owner’s floor usually originates in someone else’s property.
Pipes, chutes, and conduits split the same way. The portion serving only one unit is a limited common element allocated to that unit. The portion serving more than one unit is a general common element. Tex. Prop. Code § 82.052(2).
Balconies and patios are limited common elements, which are still common elements
Section 82.052(4) surprises more owners than any other provision in Chapter 82. Shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.
Read the last phrase again. Limited common elements are allocated exclusively, not owned exclusively. They remain common elements. That is the whole point, and it is why a failing balcony is an association-level problem even though one owner walks on it. Note the catch-all too: the list ends with “or other fixtures designed to serve a single unit,” which reaches components the drafters never named.
COLBY, IN PLAIN ENGLISH
Think of your balcony like the parking space out front
The name “limited common element” is doing you no favors, so let me give you the version I give clients.
Think about the parking space in front of your unit. Nobody else parks there. Your guests know it is yours. You would swear on a stack of Bibles that you own it. But you do not. The association owns it and you get exclusive use of it. That is the whole idea.
Your balcony works exactly the same way. You are the only one standing on it. You put the grill on it, you put the plants on it, and it is still not yours. So when the waterproofing under that balcony fails and water gets into the structural deck and the reinforcing steel starts to corrode, that repair is not your repair. It is the association’s repair, and the claim over it is the association’s claim.
One owner cannot fix a balcony by himself. One owner cannot sue over it by himself either. Take that to your board before somebody spends their own money on a repair they had no authority to make.
Who pays for maintenance follows the same map
Section 82.107(a) makes the association responsible for maintenance, repair, and replacement of the common elements and each owner responsible for their own unit, unless the declaration says otherwise. Two carve-outs matter. Under Section 82.107(b), an owner bears the cost of any utility installation or equipment serving only that owner’s unit, whether or not it sits outside the unit boundary. Under Section 82.107(c), an owner bears the cost of windows and doors serving only that owner’s unit. Declarations frequently reallocate all of this, which is why the answer is never generic.
Townhome and single-family HOA communities draw the line differently
There, owners typically hold the structure and the lot, and the association’s claim narrows to genuinely shared property: private streets, drainage and detention, amenity buildings, perimeter walls, and shared utility infrastructure. Two associations in the same zip code can have entirely different answers.
Who owns the claim: the owner, the association, or both?
Texas gives the association standing to sue in its own name. Unless the declaration provides otherwise, the association, acting through its board, may institute, defend, intervene in, settle, or compromise litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the condominium. Tex. Prop. Code § 82.102(a)(4). Note how the section opens. The entire list of association powers is prefaced by “unless otherwise provided by the declaration,” which is the statutory reason the declaration gets read first.
Standing is not the same as unlimited authority. The Houston First Court of Appeals has explained that an association suing on the owners’ behalf takes the owners’ rights as it finds them, including their agreements to arbitrate, because a party cannot both have its contract and defeat it. Stanford Development Corp. v. Stanford Condominium Owners Association, 285 S.W.3d 45 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The reverse holds as well. Where an association settled and released claims expressly on behalf of all unit owners, the individual owners were bound by that release. Phan v. Addison Spectrum, L.P., 244 S.W.3d 892 (Tex. App.—Dallas 2008, no pet.).
So there are three answers, and frequently all three are true in the same building at once.
- The association, for defects in the common elements, including limited common elements, and for matters affecting the condominium generally.
- The individual owner, for defects inside the unit boundaries and for that owner’s own consequential losses: ruined finishes, displacement costs, lost rent, diminished value.
- Both, in parallel, which is common and which requires coordination. Uncoordinated claims let a builder play owners against the association, or argue that a release signed by one wiped out the rights of the other.
COLBY, IN PLAIN ENGLISH
The association suing does not erase your claim, but a sloppy release can
Owners ask me all the time whether the association filing means they cannot. No. You have two different piles of damage.
The association has the building. The roof, the envelope, the garage, the balconies, the pipes in the walls. You have what happened inside your four walls: the floors somebody has to tear out, the hotel bill while they do it, the tenant who stopped paying rent, the fact that your unit appraises lower than the identical one two floors up. Those are your damages, and nobody gets to hand them away for you.
But here is where it goes sideways. The association settles, somebody signs a release, and the release says it is on behalf of all owners. A Dallas court enforced exactly that. If nobody was paying attention to what “all claims” meant in that document, your claim walked out the door inside somebody else’s paperwork.
Read the release. Read it before your board signs it, not after. And if your board will not show it to you, that is its own answer.
Does Chapter 82 govern your building? Check the recording date first.
Two condominium statutes operate in Texas, and which one governs depends on a date. Chapter 82, the Uniform Condominium Act, applies to all commercial, industrial, residential, and other condominiums in Texas for which the declaration is recorded on or after January 1, 1994. Tex. Prop. Code § 82.002(a). Buildings recorded before that date are governed by Chapter 81, which the Legislature titled, plainly enough, Condominiums Created Before Adoption of Uniform Condominium Act.
Chapter 82 does not simply displace the older statute. Section 82.002(c) enumerates the specific Chapter 82 sections that reach back to pre-1994 condominiums, and that list is shorter than most people assume. It includes Section 82.102(a)(1) through (7), so an older association still holds the power to institute litigation on matters affecting the condominium. It holds that power under the older statute as well: a council of owners may institute litigation on behalf of two or more apartment owners concerning a matter related to the common elements. Tex. Prop. Code § 81.201(b).
There is also an opt-in. Owners of a pre-1994 condominium may vote to amend the declaration, through the amendment process the declaration authorizes, to have Chapter 82 apply. Tex. Prop. Code § 82.002(a)(1). That amendment cannot enlarge a declarant’s duties beyond what they were immediately before the vote. Tex. Prop. Code § 82.002(b). Some Houston buildings did this decades ago and no current board member remembers.
Does the Section 82.119 pre-suit process apply to a condominium built before 1994?
Probably not, but nobody should rely on that without counsel. Here is the reasoning, and here is exactly how much weight it carries.
Section 82.002(c) does not list Section 82.119 or Section 82.120. Both were added by a single section of one bill in 2015, and that bill did not amend Section 82.002. Act of May 27, 2015, 84th Leg., R.S., ch. 730 (H.B. 1455), § 1. The bill’s only applicability provision addresses timing rather than coverage: Section 82.119 applies only to a suit filed or an arbitration proceeding initiated on or after September 1, 2015. The Legislature then amended Section 82.002 again in 2019, four years later, and still did not add either section to the list. Act of May 17, 2019, 86th Leg., R.S., ch. 39 (H.B. 302), § 4. Chapter 81, for its part, contains no engineer report requirement, no owner vote requirement, and no pre-suit gate of any kind.
That is a textual argument, not a holding. No Texas court appears to have decided the question. Any association in that posture should confirm it with counsel before skipping a step, because the cost of guessing wrong is a case dismissed on procedure rather than decided on the building. The association’s own declaration may impose preconditions regardless of which chapter governs, and the Residential Construction Liability Act applies either way.
COLBY, IN PLAIN ENGLISH
Pull your declaration and look at the date
This is the cheapest thing your board will ever do, and almost nobody does it.
Go to the county real property records and pull your declaration. Look at the recording date. If it was recorded before January 1, 1994, you are not operating under the same statute as the building across the street, and a lot of what your management company told you does not apply to you. You are on Chapter 81, plus a short list of Chapter 82 sections the Legislature reached back and grabbed. The pre-suit process everybody assumes is mandatory is not on that list.
Now, am I telling you to skip it? No. No court has ruled on this, and I would much rather win your case on a rotting balcony than gamble your building’s money on a procedure argument nobody has tested. But you ought to know which body of law you are living under before you write a forty-thousand-dollar check to an engineer.
While you are in the records, check whether the owners ever amended the declaration to adopt Chapter 82. Section 82.002(a)(1) lets them do it, and sometimes they did. It is a short search. Do it this week.
What does the Section 82.119 pre-suit process actually require?
If Chapter 82 governs your building and the association has eight or more units, the association must clear a statutory gate before it files suit or initiates arbitration on a claim about the construction or design of a unit or the common elements. The statute frames the threshold as an exclusion: it does not apply to an association with fewer than eight units. Tex. Prop. Code § 82.119(a). Everything below sits on top of whatever preconditions the declaration already imposes.
| Step | Requisito | Timing |
|---|---|---|
| 1 | Notify every party subject to a claim of the engineer’s inspection, identifying the engineer, the units or common elements to be inspected, and the date and time | At least 10 days before the inspection. § 82.119(c) |
| 2 | Each party subject to a claim may attend the inspection, personally or through an agent | At the inspection. § 82.119(d) |
| 3 | Obtain a written independent third-party report from a licensed professional engineer identifying the units or common elements at issue, describing their present physical condition, and describing any modifications, maintenance, or repairs the owners or association already performed | Before filing. § 82.119(b)(1) |
| 4 | Deliver the report to each unit owner and each party subject to a claim, and give those parties an opportunity to inspect and correct the conditions identified | At least 90 days after the report is completed. § 82.119(e) |
| 5 | Send meeting notice containing all seven required statements, including the warning about market value, marketability, and refinancing. The notice must be prepared and signed by someone outside the association’s claim counsel and that lawyer’s firm | At least 30 days before the meeting. § 82.119(f), (g) |
| 6 | Obtain approval from owners holding more than 50 percent of the total votes allocated under the declaration, in person or by proxy, at a properly called meeting | At the meeting. § 82.119(b)(2) |
Read step six carefully. The threshold is more than half of all allocated votes, not half of the owners who show up and not half of a quorum. In a building with chronic absentee owners, that is the step that fails.
COLBY, IN PLAIN ENGLISH
The pre-suit process is a project, not a form
Boards hear “pre-suit requirement” and picture a form somebody signs. It is not a form. It is a construction project with lawyers attached.
You hire an engineer, and it has to be an independent third party, not the firm that has been patching your roof for nine years. You give the builder ten days’ notice before the inspection, and they get to show up and watch your expert work. The engineer writes a report that has to describe every repair you have already made, and yes, the other side gets a copy of that report. Then they get ninety days to come cure what is in it. Then you notice a meeting thirty days out. Then you need owners holding more than half of all the votes in the building to vote yes. Not half of the people in the room. Half of everybody.
How long is that? Six to nine months if nothing goes wrong, and something always goes wrong, usually the vote.
So do not count forward from today. Count backward from your deadline. If the math does not work, you need to know that now, not in month seven.
What are the deadlines, and what actually stops the clock?
Two clocks run in every construction defect case, and they behave differently. Boards routinely track the wrong one.
Limitations: the clock you can argue about
A negligence or property damage claim carries a two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003(a). Contract and warranty claims generally carry four years. Tex. Civ. Prac. & Rem. Code § 16.004, § 16.051. Both run from accrual, and accrual is where the discovery rule and fraudulent concealment arguments live. Those arguments are real, and they are fact-intensive, and they are not something to plan around.
Repose: the clock that does not care what you knew
A statute of repose is not a limitations period. It is a substantive cutoff measured from an event, not from discovery. For a person who constructs or repairs an improvement to real property, the general period is ten years after substantial completion. Tex. Civ. Prac. & Rem. Code § 16.009(a). For registered architects, engineers, interior designers, and landscape architects, the general period is likewise ten years. Tex. Civ. Prac. & Rem. Code § 16.008(a). Both sections extend the period by two years when a claimant presents a written claim for damages within the repose period.
In 2023, the Legislature added a shorter, six-year period for certain residential construction. H.B. 2024, 88th Leg., R.S. (2023), adding Tex. Civ. Prac. & Rem. Code § 16.009(a-2) through (a-4). It applies only where all three conditions hold: the claim arises out of the design, construction, or repair of a “residence” as that subsection defines it, the defendant is a contractor as defined by Property Code Section 27.001, and that contractor provided a written warranty meeting the statutory minimums of one year on workmanship and materials, two years on plumbing, electrical, heating, and air-conditioning delivery systems, and six years on major structural components.
Here is the point that matters for a condominium, and it is one most summaries miss. The new subsection defines “residence” for itself, and the definition it wrote covers a detached one-family or two-family dwelling, a townhouse of not more than three stories with a separate means of egress, and an accessory structure of not more than three stories. Tex. Civ. Prac. & Rem. Code § 16.009(a-4)(2). It does not include the condominium language the Legislature used in the RCLA, which expressly reaches “a unit and the common elements in a multiunit residential structure.” Tex. Prop. Code § 27.001(6). The Legislature borrowed the RCLA’s definition of “contractor” and wrote a narrower definition of “residence” in the same breath.
Read that way, a multiunit condominium sits outside the six-year period and remains on ten years. Some commentators call the question disputed. I have not found a Texas court that has decided it. Applicability also keys to the contract date rather than to accrual or completion: the shortened period reaches contracts entered into on or after June 9, 2023.
| Project | Repose period | Authority |
|---|---|---|
| Improvement to real property, general rule | 10 years from substantial completion | § 16.009(a) |
| Architects, engineers, interior designers, landscape architects | 10 years from substantial completion | § 16.008(a) |
| Governmental entity as claimant | 8 years, with carve-outs preserving 10 for certain state highway and transit work | §§ 16.008(a-1), 16.009(a-1) |
| Detached home or three-story townhouse, contractor gave a complying written warranty, contract on or after June 9, 2023 | 6 years from substantial completion | § 16.009(a-2) through (a-4) |
| Multiunit condominium unit or common element | 10 years on the better reading; the six-year definition of “residence” omits condominiums | § 16.009(a-4)(2), compared with Tex. Prop. Code § 27.001(6) |
| Written warranty for a longer term, defendant in actual control, or willful misconduct or fraudulent concealment | Repose does not bar the action | § 16.009(e) |
What Section 82.119(h) tolls, and what it does not
The pre-suit statute contains a tolling provision, and it is narrower than its reputation. The period of limitations is tolled until the first anniversary of the date the association initiates the Section 82.119(b) procedures, but only if the association initiates them during the final year of the applicable limitations period. Tex. Prop. Code § 82.119(h).
Three consequences follow. An association that begins the process with more than a year left on limitations receives no tolling at all. The tolling buys one year, not more. And the word “repose” appears nowhere in Section 82.119, so an association can complete every statutory step on time and still be barred by Section 16.009. Again, that reading rests on the text; no Texas court appears to have construed subsection (h).
COLBY, IN PLAIN ENGLISH
There are two clocks and only one of them will listen to you
This is the part that keeps me up at night on these cases, so I want you to hear it clearly.
The first clock is limitations. It starts when you knew or should have known you had a problem, and lawyers can fight about that. Discovery rule, fraudulent concealment, when did the leak really start. That is a fight you can have.
The second clock is repose. It starts the day the building was substantially complete and it does not care what you knew, when you found out, who lied to you, or how well the defect was hidden. Ten years, and then it is over. You cannot argue with it, because it is not a deadline to sue. It is a decision that the claim stops existing.
Now everybody hears there is a tolling provision and they relax. Go read it. It only helps you if you start the pre-suit process in the final year, it only buys you one year, and the word repose is not in it anywhere. Meanwhile the process itself eats six to nine months of calendar.
So if your building is anywhere past year seven, this is not a next-quarter agenda item. Put it on this month’s agenda.
Does your declaration send the claim to arbitration?
Texas expressly permits it. A declaration may provide that a claim pertaining to the construction or design of a unit or the common elements must be resolved by binding arbitration, and may prescribe the process. Tex. Prop. Code § 82.120(a). Developers write these provisions in, and they are enforceable on their face.
An association cannot amend the problem away after the fact. An amendment that modifies or removes the arbitration requirement does not apply retroactively to a claim based on an act or omission occurring before the amendment. Tex. Prop. Code § 82.120(b). Combine that with Stanford Development, where an association suing on the owners’ behalf inherited the owners’ arbitration obligations, and the forum question is usually settled long before anyone files anything.
The defects we see in Houston condominium and HOA buildings
Houston fails buildings in predictable ways. Knowing the local pattern matters, because the first thing a defense expert argues is deferred maintenance rather than defective construction, and answering that argument requires specificity.
Foundation movement and expansive clay soils
Gulf Coast clay swells and shrinks with moisture. Thin geotechnical investigation, undersized or poorly designed foundations, and site drainage that concentrates water against the structure produce differential movement. It shows up as cracked slabs and stem walls, racked door and window frames, separated cladding, and floors visibly out of level. In a multi-building HOA community, the same design and the same soils tend to produce the same failure across the property, which is what turns a maintenance complaint into a defect claim.
Balcony and podium deck waterproofing
The most expensive recurring failure in Houston mid-rise and high-rise condominiums, and the one that most often forces a special assessment. Membrane detailing that stops short at the threshold, missing or reversed flashing, insufficient slope to drain, and failed sealant joints let water into the structural deck, where it stays. By the time anyone sees rust staining or spalling on the underside, the reinforcement is already corroding and the repair scope has multiplied. Remember the statutory label: balconies are limited common elements under Section 82.052(4), so this is association territory even though one owner uses the balcony.
Building envelope, stucco, and window-wall failures
Wind-driven rain during Gulf storms finds every gap in the flashing, the sealant joints, and the window-to-wall interface. Stucco and EIFS assemblies installed without a functional drainage plane trap water in the wall cavity and rot sheathing and framing silently for years. Curtain wall and window-wall systems fail at the perimeter seal and at the transitions, which is exactly where the trades hand off to each other. One wrinkle for boards: the wall assembly is a common element, but Section 82.107(c) puts the cost of maintaining windows and doors serving a single unit on that owner unless the declaration says otherwise, so envelope claims frequently straddle the line.
Parking garages and structural concrete
Chloride intrusion, spalling, corroded post-tension tendons, inadequate or omitted expansion joints, and drainage that ponds instead of draining. These escalate faster than owners expect and they carry real safety exposure. A garage in this condition is not a deferred repair item.
If the condition is dangerous, the statute moves faster. A contractor who receives written notice of a construction defect resulting from its own work, and creating an imminent threat to the health or safety of the inhabitants, must take reasonable steps to cure the defect as soon as practicable. If the contractor fails to cure it in a reasonable time, the owner may have it cured and recover the reasonable cost of repairs plus attorney’s fees and costs, in addition to other damages recoverable under law not inconsistent with the chapter. Tex. Prop. Code § 27.004(m). That subsection operates notwithstanding the ordinary notice and offer timeline in subsections (a), (b), and (c). Failing balcony connections, spalling structural concrete, corroded tendons, and missing fire-stopping are the conditions where it matters, and the notice has to say so in those terms.
Plumbing, mechanical, and fire protection
Undersized or improperly sloped drain lines, condensate failures inside wall chases that saturate framing before anyone notices, defective supply piping, and fire-stopping omissions between units and at floor penetrations. Fire-stopping defects surface during a fire marshal inspection, a renovation, or a fire. The first two are lucky.
Site drainage and detention
In a flat, flood-prone metro, grading and detention design errors put water where it does not belong and keep it there. In HOA communities this drives foundation movement across multiple lots, which is how an individual complaint becomes a community-wide claim.
Practical note for boards: start assembling maintenance and complaint records now, before you engage anyone. Work orders, leak reports, vendor invoices, board minutes, and owner emails. Deferred maintenance is the defense in every one of these cases, and organized records are the answer to it. There is a statutory reason too. The engineer’s report Texas requires must describe modifications, maintenance, or repairs already performed. Tex. Prop. Code § 82.119(b)(1)(C). Your maintenance history ends up in a document your opponent receives.
What happens when the developer still controls the board?
In most new Texas condominium and HOA communities, the declarant controls the board until a set percentage of units sells or a set period runs. That board is generally staffed by people connected to the developer. It does not commission engineering investigations of the developer’s own work, it does not send defect notices, and it does not vote to sue.
Texas anticipated the conflict. Each officer or member of the board is liable as a fiduciary of the unit owners for that person’s acts or omissions. Tex. Prop. Code § 82.103(a); Harris v. Spires Council of Co-owners, 981 S.W.2d 892 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Harris also drew a boundary around the duty, holding that the statutory fiduciary relationship does not extend to the association’s general dealings with residents beyond the matters the declaration and bylaws address. Within those matters, the claims are not theoretical. A Dallas court reversed summary judgment for association officers where owners raised fact issues about whether the officers acted in disregard of the declaration. Bever Properties, L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878 (Tex. App.—Dallas 2011, no pet.). Bever arose from a commercial office condominium and a signage dispute, but Chapter 82 applies to commercial, industrial, and residential condominiums alike, so the fiduciary holding travels.
Meanwhile the clocks run. By the time an independent owner board takes over, a meaningful part of the legal window can be gone, and the new board inherits both a building with problems and a legal position that quietly deteriorated while nobody was looking.
COLBY, IN PLAIN ENGLISH
Ask who signs your board members’ paychecks
Here is a question every owner in a new building should ask at the next meeting. Who is on this board, and who pays them?
In a new development, the declarant controls the board until enough units sell. So the people deciding whether to investigate the construction are the people who did the construction. They are not going to hire an engineer to grade their own homework. They are not going to send themselves a defect notice. And every month that goes by, your clock runs and nobody in that room is bothered by it.
Texas says those board members are fiduciaries. They owe the owners, not the developer, and Texas courts have let owners take them to trial over it. That is a real claim. But nobody enforces it for you automatically, and no judge is going to notice on his own that your building has a problem.
So if your association just took over from the declarant, or is about to, the defect assessment goes on the first agenda. Not year three, when the reserve study finally catches up to it.
Who can be held responsible?
Liability commonly reaches the developer or declarant, the general contractor, the subcontractors who performed the defective work, the architect and engineers who produced the design, and sometimes the manufacturers of failed products. Most condominium cases involve several at once, and a substantial part of the litigation is sorting out who owes what. Insurance coverage, indemnity provisions in the construction contracts, and whether the entities still exist all shape what a recovery looks like. Single-purpose development entities that dissolved after the last unit sold are a recurring problem in this practice.
Chapter 82 also supplies its own cause of action. If a declarant or any other person subject to the chapter violates the chapter, the declaration, or the bylaws, any person or class of persons adversely affected has a claim for appropriate relief. Tex. Prop. Code § 82.161(a).
Fees shift to the winner, and that cuts both ways
Boards should understand this before they vote. The prevailing party in an action to enforce the declaration, bylaws, or rules is entitled to reasonable attorney’s fees and costs of litigation from the nonprevailing party. Tex. Prop. Code § 82.161(b). The Texas Supreme Court has held that this is mandatory, and that a defendant qualifies as a prevailing party by securing a take-nothing judgment on the main issue, without proving damages or obtaining affirmative relief. Sunchase IV Homeowners Association v. Atkinson, 643 S.W.3d 420 (Tex. 2022). The Court rejected the argument that a defendant must show it was adversely affected by a violation.
COLBY, IN PLAIN ENGLISH
“the statute pays our fees” is half of a true sentence
I am going to tell your board something most lawyers pitching you will not.
Yes, the statute shifts attorney’s fees. It shifts them to whoever wins. If your association sues to enforce the declaration and loses, you can be ordered to pay the builder’s legal bill out of your reserves. Not might be. The Texas Supreme Court looked at that statute in 2022 and said the words are “is entitled” — that is mandatory — and a defendant earns it just by getting a take-nothing judgment. He does not have to prove he was damaged. He does not have to win anything affirmatively. He just has to beat you.
So when somebody stands up at your annual meeting and says the statute pays our attorney’s fees, that is half of a true sentence. Ask them to finish it in front of the owners.
If they will not, you have learned something more useful than whatever was in the rest of the pitch.
What can an association recover?
The Residential Construction Liability Act does not just describe what you recover. It caps it. In an action subject to Chapter 27, a claimant may recover only the following economic damages proximately caused by the construction defect. Tex. Prop. Code § 27.004(g).
- The reasonable cost of repairs necessary to cure any construction defect.
- The reasonable and necessary cost for the replacement or repair of any damaged goods in the residence.
- Reasonable and necessary engineering and consulting fees.
- The reasonable expenses of temporary housing reasonably necessary during the repair period.
- The reduction in current market value, if any, after the construction defect is repaired, if the construction defect is a structural failure.
- Reasonable and necessary attorney’s fees.
- Reasonable and necessary arbitration filing fees and the claimant’s share of arbitrator compensation.
The chapter reaches condominiums by design. “Residence” includes a unit and the common elements in a multiunit residential structure in which the individual units are sold under a condominium or cooperative system. Tex. Prop. Code § 27.001(6). The chapter prevails over conflicting law, including the DTPA. Tex. Prop. Code § 27.002(b). A contractual waiver of the chapter is void. Tex. Prop. Code § 27.009.
COLBY, IN PLAIN ENGLISH
The market-value item gets read backwards almost every time
Somebody is going to show your board the damages list, point at “reduction in current market value,” and tell you that is the big number. My unit is worth less because the building has defects, so they owe me the difference. That is not what it says.
Read it again. It is the reduction in value after the defect is repaired. Not because of the defect. After the fix. And only when the defect is a structural failure.
So it is not compensation for a broken building. It is compensation for the stigma that survives the repair, on a narrow category of cases. That is a much smaller thing than what people are picturing.
If a lawyer is building your recovery estimate out of diminished value, ask him to read subsection (g)(5) out loud in the meeting. It is one sentence. It will save your board a lot of disappointment.
Those caps can also disappear. If the contractor fails to make a reasonable settlement offer, the limitations on damages do not apply. Tex. Prop. Code § 27.004(f). The same is true if a contractor refuses to start repairs under an offer the claimant accepted. Tex. Prop. Code § 27.004(q). The statute cuts in both directions, and which way it cuts usually depends on how the notice and offer exchange was handled rather than on how bad the building is.
A deadline catches people here. A settlement offer that is not accepted before the 25th day after the claimant receives it is considered rejected. Tex. Prop. Code § 27.004(i). Silence is a rejection, and a rejected offer that a court later finds reasonable caps the recovery at the fair market value of that offer and cuts off attorney’s fees as of the rejection. Tex. Prop. Code § 27.004(e).
COLBY, IN PLAIN ENGLISH
Twenty-five days, and silence counts as no
Twenty-five days. Write it on the wall of the management office.
When a contractor makes a settlement offer under the RCLA, you have until the twenty-fifth day after you receive it. Nobody has to reject it for you. If you do nothing, the statute deems it rejected. And if a judge later decides that offer was reasonable, your recovery gets capped at what they offered and your attorney’s fees stop running the day it was rejected.
Now picture how an association actually operates. The offer comes in. The manager forwards it to the board president. The president wants to poll the owners. The next regular meeting is five weeks out. Somebody is on a cruise. That is twenty-five days gone without a single person making a decision, and that is how associations lose cases they were winning on the merits.
New rule for your board: anything with a deadline on it goes to counsel the same day it arrives. Same day. Not the next meeting.
What any particular association recovers still turns on the building, the contracts, the available insurance, the quality of the proof, and how carefully the pre-suit process was handled. No lawyer can responsibly promise a number, and you should be skeptical of one who does.
What a board should do this month
Find the recording date of the declaration. It determines whether Chapter 82 governs your building at all, and whether the pre-suit process applies to you.- Read the declaration and bylaws. They define the unit boundary, they control whether the association can sue, and they may require arbitration.
- Date substantial completion. Find the certificate of occupancy, the final pay applications, and the closing documents on the first units. Repose runs from this date, and it is the first thing a defense lawyer will pin down.
- Gather maintenance and complaint records. Every work order, leak report, vendor invoice, and owner email. Do it before you need it, because the statute requires the engineer’s report to describe them.
- Count backward from your outer deadline. Add six to nine months for the pre-suit process and see what is left. If the answer is uncomfortable, that is the finding.
- Get a preliminary assessment before commissioning the statutory report. Know whether there is a case worth building before the association writes a large engineering check.
- Do not sign anything from the developer. Turnover agreements, warranty settlements, and repair releases routinely contain waivers of exactly the claims you are considering.
- Route anything with a deadline to counsel the day it arrives. Twenty-five days on an RCLA offer runs whether or not the board has met.
- Talk to counsel before the board takes a public position. Minutes are discoverable, and a loosely worded resolution can create a problem that outlives the defects.
For boards, property managers, and referring attorneys
If you sit on a board or manage a Houston-area association and you are seeing water where it should not be, the useful first step is a conversation, not a retainer. I will tell you whether what you are describing looks like a common-element claim, whether Chapter 82 even governs your building, and roughly where you sit on the timeline, before you spend money on it.
I also work with referring attorneys and co-counsel on Texas construction defect matters, including condominium and HOA common-element claims. If you have an association client, a deadline you would rather not carry, and a file that needs engineering and trial capacity behind it, reach out early, while the outer deadline still leaves room to work.
Call (866) 265-2948 or request a free case review. Tell me what your building is doing, and I will tell you where you stand.
Frequently asked questions about condo and HOA construction defects in Texas
Who is responsible for construction defects in a Houston condo, the owner or the HOA?
It depends on where the defect is. Defects inside the boundaries of a unit are generally the owner’s claim. Defects in the common elements, which include the foundation, frame, roof, building envelope, parking structure, and shared systems, are generally the association’s claim. Under Texas Property Code Section 82.052(4), balconies, patios, porches, and exterior doors and windows designed to serve a single unit are limited common elements, which are still common elements. Your declaration can change all of this, and it controls.
Are balconies a common element in a Texas condominium?
Yes. Unless the declaration or plat provides otherwise, Texas Property Code Section 82.052(4) makes shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and exterior doors and windows or other fixtures designed to serve a single unit but located outside the unit’s boundaries limited common elements allocated exclusively to that unit. Limited common elements are a category of common element, so a balcony waterproofing failure is generally an association-level claim even though only one owner uses the balcony.
What are the most common condo construction defects in Houston?
Balcony and podium deck waterproofing failures, building envelope and window-wall leaks driven by wind-driven rain, foundation movement caused by expansive Gulf Coast clay and poor site drainage, spalling and corrosion in parking garages and structural concrete, plumbing and condensate failures inside wall chases, and missing fire-stopping between units.
Can a condo association sue the builder for construction defects in Texas?
Yes. Unless the declaration provides otherwise, an association may institute litigation in its own name on matters affecting the condominium under Texas Property Code Section 82.102(a)(4). But Section 82.119 requires an association with eight or more units to complete a pre-suit process first, including an independent engineer’s report and approval by owners holding more than 50 percent of the total allocated votes. The declaration may also require binding arbitration instead of a lawsuit under Section 82.120, and an association suing on the owners’ behalf is bound by the owners’ own arbitration agreements. Stanford Development Corp. v. Stanford Condominium Owners Association, 285 S.W.3d 45 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
How long does an association have to file a Texas construction defect claim?
Two clocks run. Limitations is generally two years for negligence and property damage and four years for contract and warranty claims, measured from accrual. Repose is generally ten years from substantial completion under Texas Civil Practice and Remedies Code Section 16.009(a), and it runs regardless of when the defect was discovered. The 2023 six-year residential repose period applies only to detached homes and qualifying townhouses where the contractor gave a complying written warranty, and its definition of “residence” does not include multiunit condominiums. Section 82.119(h) tolls limitations for one year, and only if the association starts the pre-suit process during the final year of limitations. It does not toll repose.
Does the Section 82.119 pre-suit process delay my association’s case?
Yes, by roughly six to nine months when nothing goes wrong. The sequence is a ten-day inspection notice, an independent engineer’s report, at least ninety days for the parties to inspect and correct what the report identifies, a thirty-day meeting notice, and then a vote of owners holding more than half of all allocated votes. Boards should count backward from the outer deadline rather than forward from today.
What if our HOA board refuses to act on obvious defects?
Board members owe fiduciary duties to the unit owners. Each officer or member of the board is liable as a fiduciary for that person’s acts or omissions. Tex. Prop. Code § 82.103(a); Harris v. Spires Council of Co-owners, 981 S.W.2d 892 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Owners adversely affected by a violation of Chapter 82, the declaration, or the bylaws also have a claim for appropriate relief under Section 82.161(a). Owners can press the issue through the governing documents as well, by demanding a meeting, petitioning for a vote, or standing for election, and they keep their own claims for defects within their unit boundaries.
Does Texas condominium law apply to older Houston buildings?
Not all of it. Chapter 82, the Uniform Condominium Act, applies to condominiums whose declaration was recorded on or after January 1, 1994. Tex. Prop. Code § 82.002(a). A condominium recorded before that date is governed by Chapter 81, and only the specific Chapter 82 sections listed in Section 82.002(c) reach back to it, unless the owners voted to amend the declaration to adopt Chapter 82. Check the recording date of your declaration before assuming which rules govern your association.
Does the Section 82.119 pre-suit process apply to a condominium built before 1994?
Probably not, but confirm it before you rely on it. Section 82.119 is not among the Chapter 82 provisions that Section 82.002(c) applies to condominiums whose declarations were recorded before January 1, 1994. The bill that created Section 82.119 in 2015 did not amend Section 82.002, and when the Legislature amended Section 82.002 again in 2019 it did not add Section 82.119 to the list. Chapter 81 contains no comparable pre-suit requirement. No Texas court appears to have decided the question, so an older association should not skip the process on this reading alone. The declaration may impose its own preconditions in any event, and the Residential Construction Liability Act applies regardless of which chapter governs.
Can an association be ordered to pay the builder’s attorney’s fees if it loses?
Yes, in an action to enforce the declaration, bylaws, or rules. Section 82.161(b) awards reasonable attorney’s fees and costs to the prevailing party, and the Texas Supreme Court has held the provision mandatory and held that a defendant prevails by obtaining a take-nothing judgment on the main issue without proving damages or obtaining affirmative relief. Sunchase IV Homeowners Association v. Atkinson, 643 S.W.3d 420 (Tex. 2022).
What can a condominium association recover for construction defects?
Under the Residential Construction Liability Act, a claimant may recover only the economic damages listed in Texas Property Code Section 27.004(g): the reasonable cost of repairs, replacement or repair of damaged goods in the residence, engineering and consulting fees, temporary housing expenses during repairs, the reduction in market value remaining after a structural failure is repaired, attorney’s fees, and arbitration filing fees plus the claimant’s share of arbitrator compensation. Those caps fall away if the contractor fails to make a reasonable settlement offer or refuses to begin repairs under an accepted offer.
Does a condominium have to arbitrate its construction defect claim?
If the declaration says so, generally yes. Texas Property Code Section 82.120(a) permits a declaration to require binding arbitration of claims about the construction or design of a unit or the common elements. An amendment removing that requirement does not apply retroactively to claims based on acts or omissions predating the amendment. Section 82.120(b).
Authorities cited
- Tex. Prop. Code §§ 27.001, 27.002, 27.004, 27.009 (Residential Construction Liability Act)
- Tex. Prop. Code §§ 81.201, 82.002, 82.052, 82.102, 82.103, 82.107, 82.119, 82.120, 82.161
- Tex. Civ. Prac. & Rem. Code §§ 16.003, 16.004, 16.008, 16.009, 16.051
- Act of May 27, 2015, 84th Leg., R.S., ch. 730 (H.B. 1455), § 1 (adding §§ 82.119, 82.120)
- Act of May 17, 2019, 86th Leg., R.S., ch. 39 (H.B. 302), § 4 (amending § 82.002)
- H.B. 2024, 88th Leg., R.S. (2023) (adding Tex. Civ. Prac. & Rem. Code § 16.009(a-2)–(a-4))
- Sunchase IV Homeowners Ass’n v. Atkinson, 643 S.W.3d 420 (Tex. 2022)
- Bever Properties, L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878 (Tex. App.—Dallas 2011, no pet.)
- Stanford Dev. Corp. v. Stanford Condo. Owners Ass’n, 285 S.W.3d 45 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
- Phan v. Addison Spectrum, L.P., 244 S.W.3d 892 (Tex. App.—Dallas 2008, no pet.)
- Daly v. River Oaks Place Council of Co-owners, 59 S.W.3d 416 (Tex. App.—Houston [1st Dist.] 2001, no pet.)
- Harris v. Spires Council of Co-owners, 981 S.W.2d 892 (Tex. App.—Houston [1st Dist.] 1998, no pet.)
This article is general information about Texas law, not legal advice, and reading it does not create an attorney-client relationship. Every condominium runs on its own declaration, and outcomes turn on facts. Consult counsel about your building before acting or declining to act. The Law Offices of Colby Lewis, PLLC, 815 Walker Street, Suite 452, Houston, Texas 77002. Colby Lewis is responsible for the content of this page and is not certified by the Texas Board of Legal Specialization.
