Why Homeowners and Attorneys Should Avoid Repairs in Litigation Cases

When a homeowner discovers a construction defect—whether in a new home or after a remodeling project—the natural instinct is to fix the problem as soon as possible. However, if the issue is or may become part of a legal dispute, making repairs before evidence is properly documented can severely damage the case. Homeowners and their attorneys must understand the importance of preserving defective conditions exactly as they are to protect their legal rights and ensure expert witnesses can provide credible testimony.

The Legal Consequences of Premature Repairs

In Texas, courts take spoliation of evidence seriously. Spoliation occurs when a party destroys, alters, or fails to preserve evidence that is relevant to pending or anticipated litigation. If a homeowner repairs or removes a defective component before it can be properly examined, the court may interpret this as an effort to conceal evidence—potentially leading to adverse legal consequences. Even if there was no intent to hide anything, the opposing side may argue that the missing evidence would have been unfavorable to the homeowner’s claims, weakening the case.

Texas courts have ruled that when key evidence is lost, judges can impose sanctions that may include dismissing claims, excluding expert testimony, or instructing a jury to assume the missing evidence would have been harmful to the party who made the repairs. This is why attorneys should strongly advise clients against altering defective conditions until a thorough investigation is completed.

Why Preserving Defective Conditions is Crucial

For a homeowner to succeed in a construction defect claim, expert witnesses—such as engineers, inspectors, or contractors—must be able to analyze the defect in its original state. If repairs are made too soon, experts are forced to rely on secondary sources like photographs, old inspection reports, or witness statements, which may not be sufficient to prove liability. Direct evidence is always the strongest form of proof in litigation.

For example, if a foundation has major cracks, but the homeowner patches them before an expert can evaluate the cause, it becomes much harder to determine whether the builder was responsible for a structural failure or if the issue was minor and unrelated to construction errors. Similarly, if a leaking roof is replaced before an expert can inspect it, the opportunity to prove poor workmanship or material defects may be lost entirely.

Steps Homeowners and Attorneys Should Take

1. Document the Defect Immediately

Before making any repairs, homeowners should take clear, high-resolution photographs and videos of the defect from multiple angles. If possible, time-stamped images and detailed notes on the issue’s history should be created. Attorneys should ensure this documentation is preserved as evidence.

2. Hire an Expert Before Any Repairs

A licensed inspector, structural engineer, or building expert should evaluate the defect in its current state before any work is done. Their report will serve as critical evidence in litigation. If needed, attorneys should arrange for additional testing, such as moisture readings, foundation movement measurements, or destructive testing, to uncover hidden problems.

3. Send a Preservation Letter

Attorneys should send a litigation hold letter to all parties involved, including contractors, builders, and subcontractors, notifying them that the defect must remain unaltered until it is fully documented. This letter also serves as proof that the homeowner warned the responsible parties to preserve evidence, strengthening the case if spoliation becomes an issue.

4. Seek Legal Guidance Before Repairs

If a defect poses an immediate safety hazard, homeowners should consult their attorney before making emergency repairs. In some cases, courts may allow limited repairs if they are necessary to prevent further damage, but only if proper documentation and expert analysis occur first.

Final Thoughts

Making repairs before a construction defect is properly documented can jeopardize legal claims and limit expert witnesses’ ability to prove liability. Homeowners should resist the urge to fix defects immediately and instead consult an attorney and preserve all evidence before any work is done. By taking the right steps early, homeowners and their attorneys can build a stronger case and increase the likelihood of holding responsible parties accountable for faulty construction.