Texas Register, Volume 30, Number 6, Pages 623-772, February 11, 2005 Page: 671
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defect such that it at least meets the commission-adopted per-
formance standard for that component. However, the parties to
a construction dispute may agree to an alternative remedy for
resolving their dispute rather than the builder making a repair
to bring the construction defect into compliance with the perfor-
mance standards. The commission believes that the language
as written is clear and accurately expresses the commission's
intent.
Eberwine suggested that the definition of "Code" as it relates to
the IRC and the NEC is unclear as written because he is un-
sure of when the context might require reference to the NEC as
opposed to the IRC. The commission finds that the definition is
clear as written and declines to make changes to the definition.
If the context refers to electrical matters and the reference is to
the Code, it references the NEC.
The commission received comments from Eberwine, Little and
TAB on whether the definition of "condition" is necessary given
changes that were made during the drafting process. The com-
mission agrees that the definition is no longer necessary and
in fact may cause confusion because of the number of times in
which the word is used in its ordinary meaning throughout the
proposed sections. Therefore, the commission has deleted the
definition.
Eberwine and representatives of BCSHA and the VBA have
questioned the definitions of "Electrical Standard" and "In-
ternational Residential Code." Eberwine suggested that the
commission should refer to a single version of the IRC and NEC
in order to promote uniformity throughout the state and BCSHA
and VBA suggested that the commission refer to the state in
its entirety rather than making separate statements for munic-
ipalities and unincorporated areas. Foster also commented
on references to the county seat in unincorporated areas of
the state because the municipality that houses the county seat
may not have adopted the IRC or NEC. The commission has
proposed adoption of the language mandated by Property Code
430.001, which requires that the commission standards refer to
the IRC and NEC exactly as stated in the proposed definitions.
Accordingly, the commission declines to make changes to these
definitions.
The commission received comments from several who com-
mented on the performance standards, including BCSHA and
VBA, regarding use of the word "excessive." The commission
finds that its definition of "excessive" is adequate for interpreting
the proposed performance standards in which the term is used.
HADD expressed concern that the definition of "extreme weather
condition" would not allow for the variety of geographical con-
ditions in Texas. However, the IRC, which is contained in the
definition, provides different standards for different geographical
regions. Accordingly, no change is necessary.
BCSHA and VBA seek clarification on the definition of "habitable
area," which refers to the commission's adopted definition of "liv-
ing space" in 10 TAC 301.1(14). "Living space" is defined as the
enclosed area in a home that is suitable for year-round residen-
tial use. The commission finds this definition self-explanatory
and declines to make revisions to this section as a result of BC-
SHA's and VBA's comments. Stark also commented that garage
and attic spaces should be included in the definition of "habit-
able area" to ensure that latent defects in mechanical systems in
the garage and attic spaces are not excluded from the warranty
of habitability. However, the commission does not agree with
Stark's analysis that the proposed language would exclude fromcoverage under the warranty of habitability a defect which occurs
in a non-habitable area of the home but which causes damage to
a habitable area of the home. Property Code 430.002(b) pro-
vides that for a construction defect to be actionable as a breach
of the warranty of habitability it must have an adverse effect on
the habitable areas of the home. Accordingly, the commission
has not made a change to the proposed text as a result of Stark's
comment on this section.
Stark opined that the definition of IRC in 304.1 (c)(9) lessens the
minimum standard that the commission is required to adopt by
inclusion of the words "substantial compliance." Further, Stark
notes that the IRC states that it "establishes minimum regula-
tions..." Stark believes that the commission "should not lessen
the 'minimum standards of performance' by not requiring full
compliance with the 'minimum regulations' of the IRC." The com-
mission notes that substantial performance under a construction
contract is the legal equivalent to full compliance. See Uhlir v.
Golden Triangle Development Corp., 763 S.W. 2d 512, 515 (Tex.
App.- Ft. Worth 1988) writ denied. Accordingly, the commission
declines to make the requested change. However, the commis-
sion notes that Ms. Stark made a converse argument regarding
the definition of "homeowner responsibility"; therefore, the com-
mission has added the idea of "substantial compliance" to that
definition to clarify its intent.
Harwell, Foster, Eberwine and Houston commented on the def-
inition of "major structural components." Harwell suggested that
the language of the definition should be exclusive rather than
inclusive as proposed. In contrast, Eberwine suggested adding
expansive language "including but not limited to" and specifically
listing "headers" among those items identified as major struc-
tural components. Houston recommended the addition of ma-
sonry arches to the listed items because masonry arches are of
the same ilk as lintels. Foster suggested that "ceiling framing"
be included as a part of roof framing systems. The commission
agrees that headers, masonry arches and ceiling framing should
be added to the list of structural components, but also agrees
that the list of structural components should be exclusive. The
text was modified to reflect the commission's evaluation of the
comments.
GSABA suggested that the commission add "engineered man-
ufactured structural components" to the definition of "manufac-
tured product." However, the commission finds that such an ad-
dition would change the meaning of the section such that it would
no longer reflect the commission's intent. The commission's ref-
erence to manufactured products applies to consumer items that
are incorporated into a home with little or no change from when
delivered by the manufacturer. Inclusion of the term suggested
by GSABA may permit the definition to include components that
are modified to fit the design of each residential construction sit-
uation.
The commission received comments from Tilson, Houston,
Stark, Eberwine, HADD, Houston, Pierry and Little on the
definition of "original construction elevations." Little commented
that garages and outbuildings that are not part of a monolithic
foundation should be excluded. The commission finds that the
proposed definition, by expressly stating that actual elevations
include garages and porches 'if those structures are part of a
monolithic foundation,' implicitly excludes garages and porches
that are not part of a monolithic foundation; thus, no change is
necessary.
Several of the commenters expressed concern that the actual
elevations be recorded. Of these suggestions, the commissionADOPTED RULES February 11, 2005 30 TexReg 671
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Texas. Secretary of State. Texas Register, Volume 30, Number 6, Pages 623-772, February 11, 2005, periodical, February 11, 2005; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth97279/m1/47/: accessed May 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.