The Hidden Litigation Problem: You Can Prove the Defect-But You Cannot Find Anyone Competent to Fix It

Attorneys handling residential construction defect cases routinely assume that once defects are properly identified, documented, and opined upon by a qualified expert, the next step-repair-is largely administrative. In theory, competent contractors should be readily available to scope, price, and perform corrective work consistent with code, manufacturer requirements, and accepted construction science.

In practice, that assumption is increasingly wrong.

Across Texas, and particularly in defect-heavy production housing markets, it has become extraordinarily difficult to locate contractors who are both willing and capable of performing repairs that actually cure construction defects rather than cosmetically conceal them. This reality has direct consequences for litigation strategy, damages modeling, scheduling, settlement posture, and credibility before the trier of fact.

This is not a labor shortage problem. It is a competence problem.

Defect Identification Has Outpaced Contractor Capability

Modern construction defect investigations routinely involve multi-disciplinary failures: structural load paths compromised by mechanical alterations, electrical systems installed in violation of mandatory safety provisions, moisture intrusion caused by enclosure failures, energy-code noncompliance driving durability issues, and systemic deviations from adopted codes rather than isolated workmanship errors.

These are not “punch list” issues.

Correcting them requires contractors who can read plans, understand code intent, follow manufacturer installation instructions, sequence work properly, and document compliance. Most residential repair contractors simply cannot do this. Many have never built to code in the first place, let alone corrected violations after the fact.

When an expert inspector identifies defects grounded in the IRC, NEC, IECC, and manufacturer requirements, the proposed repair scope often exceeds the technical understanding of the very contractors homeowners are told to hire.

Repairing Defects Is Often an Order of Magnitude More Difficult Than the Original Work

A critical-and routinely underestimated-factor is that repairing construction defects is not equivalent to building new. In many cases, it is exponentially more difficult.

As a practical matter, defect remediation is frequently five to ten times more complex than the original installation.

Unlike new construction, repairs require selective demolition without collateral damage, investigation of concealed conditions, temporary shoring or system bypasses, work sequencing around finished assemblies and occupied spaces, and integration of compliant work into noncompliant legacy systems. Every step introduces risk, uncertainty, and additional labor.

The original builder had the advantage of open framing, unconstrained access, and clean sequencing. The repair contractor does not. They must work backwards through finished assemblies, undo prior mistakes, and reconstruct systems under tighter tolerances and greater scrutiny.

Most residential contractors are installers, not forensic remodelers. When confronted with expert-defined repair scopes that require understanding how and why a system failed, many are simply unqualified to proceed.

Why Competent Contractors Decline-or Should Decline-These Repairs

Contractors who actually understand the complexity of defect remediation often refuse the work for rational reasons:

Disproportionate liability exposure. Repairing latent or systemic defects places the contractor squarely in the chain of responsibility. Any missed condition becomes theirs.

Documentation and verification burden. Expert-driven repairs require photographs, inspections, sequencing verification, and code justification that most residential contractors cannot or will not provide.

Conflict with “standard practice.” Proper repairs frequently require undoing work installed according to local habits rather than mandatory standards. Contractors who rely on those habits are reluctant to challenge them.

Builder and insurer resistance. In remediation programs, contractors quickly learn that doing the work correctly conflicts with cost caps and schedule pressures.

The result is predictable: the contractors most capable of performing the work are the least likely to accept it.

The Contractors Who Say “Yes” Are Often the Problem

Conversely, the contractors who readily agree to perform defect repairs are often those least qualified to do so.

Common outcomes include repairs that address symptoms rather than causes, work performed without reference to code or manufacturer instructions, improper sequencing, incompatible materials, and new defects introduced during attempted remediation. Pricing is often untethered from a defined scope and impossible to defend.

From a litigation perspective, this creates a cascading failure. Defective repairs become new defects. Costs multiply. Timelines expand. The defense then predictably argues that the homeowner selected the wrong contractor or interfered with the process.

Why Cost Databases Consistently Miss the Mark

Compounding the problem is the widespread reliance on unit-cost databases and insurance pricing software to estimate repair costs. These tools were never designed to price expert-driven cures of systemic construction defects.

They assume normal access, standard sequencing, visible conditions, and discrete scope items. Defect remediation rarely satisfies any of those assumptions.

As a result, database-derived estimates routinely understate the actual cost to cure-often by multiples rather than percentages. They fail to capture selective demolition, investigative labor, temporary protection, rework caused by concealed conditions, extended supervision, documentation requirements, and the inefficiencies inherent in working backward through finished construction.

The gap between a database “repair” number and the real-world cost of a code-compliant cure is not an outlier. It is the norm.

When such numbers are presented as reasonable repair costs, they create false expectations, undermine settlement discussions, and invite predictable defense attacks once repairs prove infeasible at the stated price.

Cost-to-Repair Is Not Cost-to-Cure

A recurring litigation error is the conflation of cosmetic repair pricing with the cost to actually cure a defect.

Most contractor estimates-and most database outputs-reflect the lowest-cost visual fix, not the work required to restore compliance with adopted codes and manufacturer requirements. When those repairs fail, the plaintiff is forced to explain why additional work became necessary.

This outcome is not speculative. It is foreseeable when complex remediation is scoped or priced by parties who did not identify the defects and do not understand their technical basis.

Litigation Implications Attorneys Should Anticipate

The contractor competence gap, combined with the inherent difficulty and underpricing of defect remediation, affects cases in several material ways:

• Delayed or abandoned repairs despite client willingness

• Escalating damages following failed remediation attempts

• Settlement friction driven by unrealistic repair numbers

• Credibility attacks focused on repair outcomes rather than original defects

• Disputes over whether a defect is practically or economically curable at all

Ignoring these realities weakens case strategy and exposes clients to unnecessary risk.

Practical Guidance for Counsel

Attorneys handling residential construction defect matters should:

• Treat repair feasibility and pricing as evidentiary issues, not administrative ones

• Recognize that many defects are far harder to repair than to install correctly the first time

• Expect that expert-defined scopes will exceed both contractor capability and database pricing assumptions

• Distinguish clearly between cosmetic repair numbers and code-compliant cures

• Address remediation complexity and cost realism early in the case narrative

In many cases, the inability to obtain competent contractors or realistic repair pricing is not incidental-it is probative evidence of the severity and systemic nature of the defects themselves.

Conclusion

Residential construction defect litigation now operates in a widening paradox: defects are easier than ever to identify, document, and prove, yet harder-and far more expensive-than ever to properly correct.

Repairing defects is not delayed construction. It is forensic reconstruction, often an order of magnitude more difficult than the original work and poorly captured by standard pricing tools. Attorneys who fail to account for this reality do so at their clients’ expense.

The central question is no longer whether defects exist. It is whether anyone remains capable of fixing them correctly, and what it actually costs to do so once the shortcuts are exposed.