If you’re a Texas homeowner staring down a construction defect in your brand-new house, you may assume you’ll have your day in court. But odds are, you won’t. That contract you signed? It almost certainly forces you into private, binding arbitration—a dispute resolution process designed by the very people you’ll be going up against.
Arbitration in residential construction isn’t courtroom litigation. It’s not presided over by a judge or a jury of your peers. It’s a streamlined system with relaxed evidentiary rules, limited discovery, and—in many cases—a decision-maker who regularly hears cases for the same national homebuilders again and again. The process favors speed and cost containment. But more often than not, those savings are for the builder, not the homeowner.
So is it hopeless? Not if you know what you’re doing. And that starts with understanding what arbitration is—and isn’t.
Residential construction arbitration in Texas typically begins with a required written demand under Chapter 27 of the Texas Property Code—known as the Residential Construction Liability Act. This isn’t just a bureaucratic formality. It’s a ticking clock with strict requirements. You must outline the defects in writing, allow the builder time to inspect and respond, and give them the opportunity to offer a repair before you can proceed. Make no mistake: failing to follow the RCLA process to the letter can torpedo your claim. It can cap your damages, limit your attorney’s fees, and undermine your credibility in arbitration. Builders know this. Their lawyers count on it.
Once arbitration begins, the homebuilder’s legal team will often try to paint the defects as cosmetic, the performance failures as acceptable, or the warranties as expired. And because arbitrators don’t have to follow the same rules of evidence as a court, decisions often rest not on statutory violations or code breaches—but on what the arbitrator finds “reasonable.”
I’ve served as an expert witness in hundreds of construction defect cases. I’ve reviewed installations that violated building code, manufacturer instructions, ASTM standards, and basic common sense. And I’ve seen homeowners prevail—even in arbitration. Winning isn’t about emotion. It’s not about volume. It’s about evidence. Arbitrators need clear, digestible information—technical defects explained in plain English and backed by standards, drawings, and photos.
This is where the right expert can shift the balance. An effective expert witness doesn’t just testify. He teaches. He connects the dots between the poorly installed roof flashing, the water-stained drywall, and the language of IRC R703.4 or ASTM E2112. He doesn’t hedge when asked about compliance—because the code is not a suggestion. Arbitrators, even the seasoned ones, often don’t know the nuances of window buck detailing, self-adhered flashing compatibility, or slab edge insulation vapor drive. That’s not a criticism—it’s a reality. So the job of the expert is to make those concepts stick and show how the builder’s shortcuts created real damage—not hypothetical risk.
One of the unspoken advantages builders enjoy in arbitration is surprise. They rely on homeowners being unfamiliar with the process, the procedural traps, and the consequences of rejecting repair offers that seem generous but solve nothing. But when a homeowner comes prepared—with a code-savvy expert, a complete photographic and narrative record, and documentation that aligns RCLA demands with the real-world failures observed—the builder’s strategy begins to crack. Arbitrators notice when a builder fails to defend obviously defective work. They notice when the homeowner’s expert can explain flashing integration better than the installer who botched it. And they definitely notice when a builder’s repeated denials start to look less like disagreement and more like avoidance.
Texas doesn’t offer homeowners many favors in construction disputes. But what you lack in leverage, you can make up for in preparation. Hire your own inspector early. Document everything. Insist on written communication. And get help from someone who’s been through arbitration from the expert witness seat. Builders win when homeowners give up. But when you put pressure on the weak points—poor workmanship, ignored codes, vague warranties, empty promises—results can turn.
No, arbitration isn’t ideal. It’s not fair. But it’s not unbeatable. And with the right team, the right preparation, and a well-developed expert narrative, you can hold the builder accountable. I’ve seen it happen. I’ve helped make it happen. And I’ll keep doing it.
