By Thomas Musil
McClatchy TribuneArticle Launched: 07/19/2007 02:51:26 PM PDT

Q: I own a construction management firm. In January 2002, I completed a four-unit townhome project for a private developer on South Padre Island, Texas. My developer kept one unit and sold the other three. We provided what was then an industry standard: a one-year warranty that expired in January 2003.

In the interim year, my client sold his townhome to another party. In November 2005, a rear deck collapsed from moisture penetration and subsequent rot. The previous year I had been in discussions with the present owner to replace the porch, as it was clear that there was water penetration. But the owner at that time decided to not pursue repair or replacement. About a year later the collapse occurred.

We met with the owner and asked her to allow our engineer to review the debris and damage prior to cleanup. We heard nothing further; the owner replaced or repaired the deck and sent me a bill for $21,000. In addition, her insurance company has informed me they want to sue me for $16,000.

This replacement could have been completed for about $5,000 in 2005. We offered to pay half of this amount then (although our warranty with previous owner had long since expired) but were rebuffed.

Granted, there were moisture issues - but these wooden decks had ceramic tile on them that my developer chose to have installed, and they were not severe-weather grade. All homes have maintenance issues, and the owner assumes routine maintenance responsibilities such as waterproofing grout joints and checking for any cracking. We live in a hurricane zone here and occasionally we have tropical storm issues and high winds.

How can I be liable for this problem even if the Texas property code clearly states that prior to September 2003, any warranty agreed to by owner/builder is the one that is in effect? My developer agreed to this warranty, moved into this house and subsequently sold it. Do I need big guns here or will a judge also see this as clearly as I think I see it?

A Your situation is a common one experienced by both builders and sellers. That is, after a property is sold, the buyers fail to maintain the property to prevent damage. If damage occurs, buyers often go back to the seller for a remedy. As you point out, the need for ongoing inspection for moisture prevention by the buyer is critical to maintain the integrity of the wood framing and prevent rotting.

Indeed, it's so critical that by not doing so the deck rotted and eventually collapsed. Your situation is similar to a buyer's need to maintain gutters and downspouts to prevent water from draining too close and into the foundation. Clearly, the one-year warranty has expired and your company is not liable for any repair costs. However, the legal costs of fighting this matter may be substantial.

Thomas Musil is the director of the Shenehon Center for Real Estate at the University of St. Thomas in Minneapolis. E-mail questions to tamusil@stthomas.edu.