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HB 1053: Proposed Bill would Reduce Construction Defect Liability Window from Ten to Five Years
If you are a builder or designer in Texas, you know that you can be on the hook for design or building defects as long as ten years following the substantial completion of the building.
After that, you cannot be held responsible for any issues that occur. In construction, this rule is called the statute of repose, and if proposed legislation HB 1053 passes, the ten-year window could shrink to a five-year window.
Statutes of repose shelter legislatively-designated groups from personal injury and property actions after a period of time has passed. They are similar to statutes of limitations in that they set deadlines within which plaintiffs must bring actions, but they differ in that the time period found in repose statutes is independent of the occurrence of a legal wrong or the discovery of injury. The purpose of a statute of repose is to give absolute protection from the burden of indefinite potential liability by setting an outer limit beyond which no action can be maintained.1
For the last 40 years, Texas has had a ten-year statute of repose, in general, for claims against builders and designers. Both statutes apply to claims for injury, damage, or loss to real or personal property; personal injury; wrongful death; contribution; or indemnity.2
By way of comparison, roughly half of the 50 states currently prescribe to a ten-year statute of repose for construction professionals. Arkansas, California, and Tennessee each have four-year statutes of repose, which are the shortest construction-specific repose statutes in the United States.
In the 85th Regular Session (2017), Republican Representatives Giovanni Capriglione (District 98) and Morgan Meyer (District 108) filed House Bill 1053 to effectively shorten the statute of repose time period from ten years to five years. This would allow developers, engineers, architects, interior designers, and landscape architects to be able to raise the statute of repose as an affirmative defense after five years of substantial completion of the improvements as opposed to ten years.
At this point, it is unclear whether House Bill 1053 will pass into law. The proposed bill is a substantial reduction in time that owners and construction professionals alike should pay close attention to in the coming legislative session. If passed, Texas would have one of the shortest construction repose statutes in the United States.
Update: HB 1053 died in House Judiciary & Civil Jurisprudence Committee
1See Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). 2See Id.