With all the condominiums and high rises going up around Houston, it’s a bit surprising that there is very little discussion on the newest amendments to the Texas Property Code that effect condominium defect claims. If a condominium association is in Texas and has at least eight units it must comply with Chapter 82 of the Texas Property Code before it can file any defect claims.
Chapter 82.119 reads as follows:
In addition to any preconditions to filing suit or initiating an arbitration proceeding included in the declaration, an association, before filing suit or initiating an arbitration proceeding to resolve a claim pertaining to the construction or design of a unit or the common elements, must:
(1) obtain an inspection and a written independent third-party report from a licensed professional engineer that:
(A) identifies the specific units or common elements subject to the claim;
(B) describes the present physical condition of the units or common elements subject to the claim; and
(C) describes any modifications, maintenance, or repairs to the units or common elements performed by the unit owners or the association; and
(2) obtain approval from unit owners holding more than 50 percent of the total votes allocated under the declaration, voting in person or by proxy as provided by Section 82.110, at a regular, annual, or special meeting called in accordance with the declaration or bylaws, as applicable.
(c) The association must provide written notice of the inspection to be conducted by the engineer to each party subject to a claim not later than the 10th day before the date the inspection occurs. The notice must:
(1) identify the party engaged to prepare the report required by Subsection (b)(1);
(2) identify the specific units or common elements to be inspected; and
(3) include the date and time the inspection will occur.
(d) Each party subject to a claim may attend the inspection conducted by the engineer, either personally or through an agent.
(e) Before providing the notice of the meeting under Subsection (f), an association must:
(1) on completion of the independent third-party report, provide the report to each unit owner and each party subject to a claim; and
(2) allow each party subject to a claim at least 90 days after the date of completion of the report to inspect and correct any condition identified in the report.
(f) Not later than the 30th day before the date the meeting described by Subsection (b)(2) is held, the association must provide each unit owner with written notice of the date, time, and location of the meeting. The notice must also include:
(1) a description of the nature of the claim, the relief sought, the anticipated duration of prosecuting the claim, and the likelihood of success;
(2) a copy of the report required by Subsection (b)(1);
(3) a copy of the contract or proposed contract between the association and the attorney selected by the board to assert or provide assistance with the claim;
(4) a description of the attorney’s fees, consultant fees, expert witness fees, and court costs, whether incurred by the association directly or for which the association may be liable as a result of prosecuting the claim;
(5) a summary of the steps previously taken by the association to resolve the claim;
(6) a statement that initiating a lawsuit or arbitration proceeding to resolve a claim may affect the market value, marketability, or refinancing of a unit while the claim is prosecuted; and
(7) a description of the manner in which the association proposes to fund the cost of prosecuting the claim.
(g) The notice required by Subsection (f) must be prepared and signed by a person who is not:
(1) the attorney who represents or will represent the association in the claim;
(2) a member of the law firm of the attorney who represents or will represent the association in the claim; or
(3) employed by or otherwise affiliated with the law firm of the attorney who represents or will represent the association in the claim.
(h) The period of limitations for filing a suit or initiating an arbitration proceeding for a claim described by Subsection (b) is tolled until the first anniversary of the date the procedures are initiated by the association under that subsection if the procedures are initiated during the final year of the applicable period of limitation.
Tex. Prop. Code § 82.119.
What does this mean for litigation in this area? Well, only time can give a definitive answer but one can certainly predict that there will likely be far less defect litigation in the area. The expert requirements alone will likely result in fewer claims as the cost to prosecute one of these claims has certainly increased.