Houston, TX asked in Real Estate Law for Texas

Q: Our builder gave us less than a week to notify us of a 24 day delay in closing. Can a builder forever delay a home?

After contracting with Meritage in early March, we have been given 6 closing dates. Delays ranged from 4-45 days with a few months of notice to most recently not even a week's notice for a 24 day delay for our current closing date.

Meritage did not even give us a week to do the following: extend our temporary housing for my 10 month old, 4 year old, wife and I; reschedule appliance deliveries; reschedule furniture deliveries; reschedule when the movers come to deliver our belongings from NJ to our TX home with Meritage; and to reschedule when our 4 year old could start school.

According to Thomas, the person in charge of our house now, said in an email to us, "Unfortunately no the previous manager (Chris) did not apply for these (meter permits). Since the email we have done the necessary inspections through the city to be able to order these meters...Once the meter is installed it takes about 2 weeks to get it all buttoned up and ready for the appraiser and inspections and walk."

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1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: Building contracts are often subject to delays. Everything from government inspections to the weather can create a delay in even a simple single-family dwelling building contract. Currently, lingering supply chain issues initially caused by the global COVID-19 pandemic are causing delays in many construction projects, and conversely, are being used as an excuse even if they aren't the actual cause of delays.

Fortunately, if timing is important to the parties, the law allows the parties to agree in their building contract to a form of liquidated damage provision for what it known as "delay damage." Usually, delay damages show up as a per-day charge for each day the contractor is late completing its work.

On the other hand, if timing is unimportant to the parties, the law allows the parties to agree in their building contract to what is called a "no damage for delay" clause. If the parties have agreed to such a clause, then neither party can claim any damages for a delay in completion of the work.

Almost every building contract has either a "delay damage" provision or a "no damage for delay" clause. In the absence of either such clause, a builder can be sued for damages arising out of the delayed completion of its work beyond the completion date specified in the contract, or beyond a "reasonable time" if no fixed completion data was agreed upon, if the reason for the delay is attributable to the actions or omissions of the builder or its subcontractors. Application of the law in cases where there is no clause either way requires a careful analysis of the facts of each particular case. So you should seek the services of a litigation attorney with strong experience in the areas of contract and construction law.

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