A construction defect in a commercial property is rarely a simple problem. The physical damage is visible and the financial consequences accumulate quickly. But transforming a discovered defect into a successful legal claim requires a disciplined understanding of which legal theories apply, who bears responsibility, and how the defect is proven to a standard that holds up in Texas court. Property owners who approach this process without that foundation often find that a legitimate grievance fails not on the merits, but on the mechanics of how the claim was built.
Commercial Construction Defects Are Governed Differently Than Residential Claims in Texas
Texas property owners who research construction defect law quickly encounter the Texas Residential Construction Liability Act, the statutory framework governing disputes between homeowners and builders of single-family homes, condominiums, and similar residential structures. The RCLA establishes mandatory pre-litigation notice procedures, repair opportunities, and specific damage caps.
Commercial construction is different. The RCLA does not apply to commercial projects. A business owner, commercial landlord, or real estate investor who discovers defects in an office building, warehouse, retail facility, or industrial property cannot rely on the RCLA framework.
Commercial construction defect claims are governed by contract law, applicable tort theories, warranty principles, and in some cases the Texas Deceptive Trade Practices Act.
Categories of Construction Defects That Give Rise to Claims
Texas construction defect litigation recognizes four principal categories, and the category determines in large part who bears legal responsibility.
Design defects arise from errors or omissions in the architectural or engineering plans. Under the Spearin doctrine, a contractor who builds in accordance with plans and specifications furnished by the owner is generally not liable for defects that result from those plans. Responsibility for design defects flows to the design professional who produced them, not the contractor who followed them.
Material defects involve the use of substandard or non-conforming materials, exposing contractors who substitute inferior materials for those specified in the contract.
Construction or workmanship defects result from improper installation, inadequate supervision, or failure to follow accepted industry standards, and represent the most common category in commercial litigation.
Subsurface and geotechnical defects involve failures attributable to soil conditions or foundation design, are often latent, and tend to produce the most severe structural consequences.
Legal Theories Available to Commercial Property Owners in Texas
Commercial property owners have several independent causes of action, and a well-constructed claim often asserts more than one.
Breach of contract is the most direct theory. When a contractor or subcontractor delivers work that fails to conform to the plans, specifications, or contractual standards, the property owner may have a breach claim covering repair costs and consequential losses.
Negligence provides an independent basis for recovery against contractors, subcontractors, and design professionals who fail to meet their applicable standard of care and does not require a direct contractual relationship between the owner and the responsible party.
Breach of warranty claims arise from express representations in the contract or, where applicable, implied warranties under Texas law. Fraud and fraudulent concealment are available where a contractor knowingly concealed a defect and carry the potential for exemplary damages in appropriate cases.
The DTPA provides an additional avenue where a contractor’s misrepresentations rise to the level of a false, misleading, or deceptive act in connection with the transaction.
The Role of Expert Witnesses in Proving a Construction Defect Claim
Commercial construction defect claims do not always succeed on photographs and complaints. They succeed on qualified expert testimony establishing what the standard of care required, how the work deviated from that standard, and what the deviation caused in terms of physical damage and financial loss.
A construction expert, typically a licensed engineer, architect, or construction professional with relevant experience, inspects the property, reviews the plans and specifications, and renders an opinion on the nature and cause of the defect. Without that foundation, a property owner cannot establish causation, and the claim fails.
Identifying Responsible Parties and Statute of Limitations Considerations
Commercial construction projects involve layered relationships among general contractors, subcontractors, design professionals, and materials suppliers. When a defect arises, responsibility may lie with one party or several, and early identification of all potentially liable parties is essential. Each party may carry separate insurance and separate contractual obligations affecting the available recovery, and delay in naming responsible parties can result in claims being time-barred even when the underlying defect is legitimate.
Texas law provides a four-year statute of limitations for breach of contract claims. For tort claims, a two-year period generally applies. The discovery rule can extend the limitations period for latent defects, allowing the clock to begin when the owner knew or reasonably should have known of the defect rather than when construction was completed. The applicability of the discovery rule is fact-specific, making early legal analysis of limitations exposure a necessary step in any commercial defect claim.
What Commercial Property Owners Should Do When a Defect Is Discovered
The decisions a commercial property owner makes in the days and weeks following discovery of a construction defect have lasting consequences for the viability of the claim.
Property owners should document the defect thoroughly before any remediation occurs. Photographs, video, and written records preserve evidence that cannot be recreated once repairs begin. Where the defect involves structural components or concealed systems, retain a qualified engineer to inspect and document conditions before anything is disturbed. Do not repair defects without notifying responsible parties and providing an opportunity to inspect. A property owner who makes repairs without that notice may face spoliation arguments or challenges to the necessity of the repair.
Retain an experienced Texas commercial litigation attorney before sending any written demands or making representations to contractors or insurers. The commercial real estate litigation attorneys at Roquemore Skierski PLLC represent property owners and businesses in construction defect disputes, from initial claim analysis through trial, drawing on decades of Texas practice to build claims that hold up to scrutiny.