I found your website in efforts to research available options or remedies regarding a plumbing issue at my home. In brief, my wife & I bought our house in 2008 from X Builder Homes. It came with the standard 1, 2, and 10 year new-home warranties. We are currently experiencing a plumbing/drainage problem. Apparently there is a pipe 8-10 feet underneath our driveway which is blocked or partially blocked. I say "apparently" because the plumber who came out yesterday charged us $300 to tell us the pipe was blocked (which we already suspected) and that he couldn't fix it.
Anyway, we are obviously past the effective dates for the 1 & 2-year homebuilder's warranties. I am also under the impression that our homeowner's insurance does not/would not cover the cost to have this proactively repaired. I don't know if the root cause is a construction defect or not, but I am certain that no one in my family has tunneled under the driveway and intentionally damaged the drain lines. Beyond that, all I have is a handful of questions, chief among them is ?Would the 10-year warranty of habitability cover this situation??
I found a summary document, apparently published by the Texas Residential Construction Commission, which states, ?The ten-year warranty of habitability deals with hidden defects found after the warranty covering a component part ends.? Unfortunately, further research ? indeed, that which led me to your website -- has instructed me that the TXRCC is now defunct.
Now, I understand you are an attorney and, as such, are not in the business of dispensing free legal advice. However, I find myself in a bit of a tight situation, as we occasionally (and with increasing frequency) have sewage backing up into our shower & bathtubs. This problem won?t fix itself & will only get worse, thus time is of the essence and swift corrective action is necessary (plus it will keep my wife happy). But I don?t want to spend money for repair if it is another party?s responsibility. So, I would like to ask just one question and beseech you for a few quick words of wisdom, if would be so kind. Assuming we have not flushed a bowling ball or hedgehog down the toilet & caused this problem ourselves (which I think is a safe assumption), am I heading down the right path with the warranty of habitability, or is the burden of proof (not to mention bureaucracy) with a builder too high of a wall to climb?
Here is my response:
Your sewer line should not be blocked at this early date. If the home was old enough which it is not, then you could suspect the most common culprit - tree roots. Given the short period of time and the backflow, something is definitely wrong. A frequent occurrence is a joint that is not connected properly that creates backup. A second probability is that the contractors flushed concrete - yes you read that correctly - down the toilet and it solidified and is blocking the flow. When use is heavy, it clogs and backs up. Sounds like you need to video the line - a cost of several hundred dollars and determine exactly what the problem is.
Once you discover that, absent an object introduced from inside the house by your family or guests, you will have a valid claim against the seller/builder and the plumbing contractor. If it is a bad joint, you will proceed against the plumber and the builder. If it is foreign objects, the builder only.
A warranty is a builder's promise to respond for certain problems. Regardless of their warranty, the current defect constitutes negligent building, deceptive trade practices by representing that the house has characteristics and qualities it did not have and it is a breach of the contract.
You should get an estimate of the cost of repair and then send the builder an RCLA demand letter. It must identify that you have a plumbing/sewer clog and it was caused by them but only just now discovered. It must be sent by Certified Mail, Return Receipt Requested. If they do not agree to repair it, you then have the right to sue the builder and his plumber (if applicable). Your purchase contract almost certainly includes an arbitration clause meaning you will have to have this matter tried by a private judge rather than a judge in a public court system.
Evin G. Dugas
Board Certified in Consumer & Commercial Law
Texas Board of Legal Specialization
2303 Ranch Road 620 South
Suite 135 PMB 361
Austin, Texas 78734