- Did the Builder construct the foundation per plans and specifications issued by the Structural Engineer and per the recommendations of the Geotechnical Engineer?
- Did the Builder hire a Geotechnical Engineer to perform a geotechnical engineering evaluation to determine the subsurface profile that significantly affects the performance of a foundaton system?
- Did the Structural Engineer provide a design without the benefit and reliance on a geotechnical report (i.e. guessing the soil conditions instead of actually exploring them)?
- Did the Geotechnical Engineer provide inadequate or reckless recommendations?
- Did the Builder hire a Structural Engineer to provide an "engineered" foundation system?
- Did the Builder's subcontractor (i.e. concrete crew) make a mistake during construction and not build the foundation per plans?
After construction, it is also possible that the homeowner (previous or current) has instigated problems by creating such conditions as:
- Not investigating for plumbing leaks when an initial distress is noted and allowing excessive wetting of the soils to continue for a prolonged period of time.
- Changing drainage conditions on any side of the foundation, allowing water to pond adjacent to the foundation elements.
- Planting large tree species next to the house (tree root systems can dry clay soils and cause shrinkage settlement or maintain a low soil elevation relative to other sides of the house).
If your house is less than 10 years old it is probably covered under a "structural" home warranty in addition to the typical house systems home warranty (i.e. appliances). But it is important to note the following:
(1) Read the fine print. The typical structural warrant will not cover damages associated with a plumbing leak after 2 years. Therefore if you have a leak after 2 years and it contributes to soil movement, the warranty company can deny the claim even if there are other contributing conditions. In our opinion the foundation should have been designed to anticipate some movement associated with a plumbing leak if soil improvement was not performed.
(2) Read the fine print again. The typical warranty also does not cover cosmetic or functional damages associated with soil movement, it will only cover damages associated with a structural foundation failure. Defining failure can be subjective. Cosmetic and functional distress is not the same as a structural failure. The inability to open a window or door, however, is deemed a safety hazard (i.e. to escape a fire and smoke) therefore the coverage might apply (i.e. does the warranty reference both structural failure and safety failure?). The warranty will commonly recognize a failure if unsafe, unsanitary, or unlivable conditions result from the incident.
(3) Your regular homeowner's insurance does not commonly cover foundation damage due to water sources (i.e. plumbing leaks). In lieu of this limited warranty protection, it is in our opinion important for geotechnical engineers, structural engineers, and builders to provide homeowners with reliable foundation systems from the beginning and not a system that only accounts for certain conditions and may therefore fail to perform adequately when those other conditions arise. This means performing soil improvement where expansive clay soils are present. Geotechnical and Structural Engineers are bound by ethics and the Texas Board of Professional Engineers, the Texas Engineering Practice Act, and the Texas Administrative Code to "safeguard property" and "promote the public welfare". If your house is cracking and the foundation is not performing properly, it is possible you have a substandard product.
(4) Texas has a 2 year statute of limitations on filing a lawsuit related to house distress ("negligence" claim). The moment you notice anything and record that observation somewhere, you have 2 years from that point to inquire with the Builder or start legal proceedings. There may also be a 10 year statute of limitations (statute of repose) for contractors (Builders) and engineers as related to new construction (i.e. no claims permissible after 10 years). Seek advice from an attorney to understand statutory requirements. Your particular case may have issues related to "breach of contract", "breach of implied warranty", "fraud", or "negligence". The Texas Residential Construction Liability Act (RCLA) of 1989 previously governed residential defect claims but is now defunct.
If your house is less than 10 years old, you can file a claim with the structural warranty company and the Builder. The warranty company or Builder will pay for repairs and foundation repair elements unless the fine print excludes soil related movement or plumbing leaks as previously noted. But you must file a claim in a timely manner and you must not make the mistake of making any repairs before the claim analysis is completed. Your first step should be to hire a Geotechnical Engineer to perform the soil-related part of the forensic study. This will provide you with information on probable causes and effects so you can determine if you can file a claim or not (i.e. is the problem soil and foundation related or not?). You can then provide the forensic study to the warranty company who will give the information to their forensic engineer (Structural Engineer) who will complete the forensic study for the warranty company. The warranty company might tell you they want to hire the Geotechnical Engineer but consider do you want both the warranty engineer and the Geotechnical Engineer to be workign for the same party (i.e. not working for your interests?). If your house is more than 10 years old, there is no more structural warranty and the statute of repose expired so you are out of luck.
If you are not the first owner but the house is less than 10 years old, you are in a better situation because the first owner usually has an arbitration clause in their contract with the Builder that prevents them from getting far with a claim. As the second owner you have no such restrictions and can hire an attorney for a claim. After a forensic study is completed and you determine that the original design and construction team produced an inadequate foundation system, you can pursue a claim but as noted earlier Texas has a 2 year statute of limitations on negligence claims, meaning fromt he moment you notice a serioius defect you have 2 years to file. You can possibly determine the original Builder in your home purchase paperwork (i.e. floor plan) or through the city permit records.
Texas also has a 4 year statute of limitations on breach of contract claims for the initial owner (i.e. if your purchase agreement states you are to be given a house built to code and without defects).
If you are the first owner of the house or a subsequent owner within 10 years of construction, then you should be able to resolve problems by contacting the Builder. Most Builders are professional and care about their public relations in this age of social media and will listen to your concerns and try to mitigate the problem and repair your home. Some will not. You can ask a Builder to complete a forensic study by hiring Capital Geotechnical Services.
If you are buying a newly constructed home, you will likely be forced to sign a contract that includes a forced arbitration clause. Consumer advocacy groups discourage buyers from forced arbitration but that means you have to be willing to walk away from the table, because many spec home builders will not consider it. Or just buy a previously built and owned home and have more recourse to fix problems. There is a perception that arbitration is expensive and results are generally not satisfactory to buyers. Nicholas has served as an expert witness and "won" arbitration cases, so it is possible, but risky.
Have an opinion or feedback about any of our commentary? Please email us at firstname.lastname@example.org.