Part 7. TEXAS RESIDENTIAL CONSTRUCTION COMMISSION

Chapter 304. WARRANTIES AND BUILDING AND PERFORMANCE STANDARDS

The Texas Residential Construction Commission ("commission") adopts new Chapter 304, relating to Warranties and Building and Performance Standards. Subchapter A, §§304.1 - 304.3, subchapter B, §§304.10 - 304.33, subchapter C, §§304.50 - 304.52 and subchapter D, §304.100, are adopted with changes to the proposed text as published in the October 22, 2004 issue of the Texas Register (29 TexReg 9759). The new chapter outlines the statutorily mandated minimum warranties and performance standards for residential construction throughout the State of Texas.

The sections are adopted to implement House Bill 730 (Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01). The new sections are adopted under Property Code §408.001, which provides general authority for the commission to adopt rules necessary to implement Title 16, Property Code; Property Code Chapter 426, which requires the commission to implement warranties and performance standards for use in the State-sponsored Inspection and Dispute Resolution Process (SIRP); and Property Code §430.001, which provides specific authority to adopt rules establishing limited statutory warranty and building and performance standards for residential construction.

The commission has determined that these sections will become effective on June 1, 2005. These sections will apply to all residential construction that commences on or after June 1, 2005, if the construction is for a new home, material improvement to an existing home or an interior renovation to an existing home that costs in excess of $20,000. For the purpose of determining applicability, the date of commencement is the earlier of the date that the parties enter into an agreement for a transaction governed by the Act or the date that work commences on or after June 1, 2005. The commission has revised the proposed sections to state the effective date in §304.1(b).

Subchapter A, General Provisions, §§304.1 - 304.3, provides for definitions, the applicability of the International Residential Code and National Electrical Code to residential construction, the implementation of warranty and performance standards and general conditions that identify builder and homeowner responsibilities. The subchapter describes general builder responsibilities, general homeowner responsibilities and general exclusions from or conditions affecting the application of the performance standards contained in the chapter. The subchapter also describes the minimum warranty periods adopted by the commission and the warranty of habitability.

Subchapter B, Performance Standards for Components of a Home Subject to a Minimum Warranty of One-Year for Workmanship and Materials, §§304.10 - 304.33, provides performance standards for those components of a home or home improvement that are subject to the minimum one-year warranty period provided for in subchapter A of this chapter. This subchapter provides standards for components of a home including foundations, framing, doors, windows, electrical fixtures, plumbing accessories, cooling and heating systems, interior trim, fencing and pest control. The standards include statements of builder and homeowner responsibilities and exclusions where applicable.

Subchapter C, Performance Standards for Plumbing, Electrical, Heating and Air-conditioning Delivery Systems Subject to a Minimum Warranty Period of Two Years, §§304.50 - 304.52, provides for performance standards for plumbing, electrical, heating and air-conditioning delivery systems that are subject to the minimum two-year warranty period provided for in subchapter A of this chapter. This subchapter provides for specific standards of performance for elements such as wiring, breakers, electrical fixtures, plumbing accessories, pipes, wastewater treatment systems, heating and cooling system components and ductwork. The standards include statements of builder and homeowner responsibilities and exclusions where applicable.

Subchapter D, Performance Standards for Major Structural Components of a Home Subject to a Minimum Warranty Period of Ten Years, §304.100, provides performance standards for foundations and other structural components of a home that are subject to the minimum ten-year warranty provided for in subchapter A of this chapter.

The commission enlisted the assistance of the Texas A & M University College of Architecture, Construction Science Department ("TAMU") in the development of the warranties and building and performance standards. The TAMU faculty and students attempted to develop a list of each component of a home in which a defect is likely to occur. Each component then was assigned a performance standard. To develop the warranties and to assign a performance standard to each component TAMU: 1) reviewed the standards of other states, warranty companies and the industry; 2) considered the minimum standards in the International Residential Code, the National Electrical Code and the U.S. Housing and Urban Development standards; and 3) considered the cost impact and regional climactic differences of each performance standard. TAMU’s draft was then provided to the commission for the final development of an initial "working draft". This "working draft" was then disseminated to the public and posted on the agency’s website. Written comment on the working draft was invited and received.

To ensure statewide participation in the development of the new warranties and performance standards, the commission held informal "town hall" styled meetings in Houston, McAllen, Austin, San Antonio, Laredo, Lubbock Longview, Dallas and El Paso from August 3 to August 31, 2004. The stakeholder audiences included engineers, inspectors, homeowners and builders. The commission also held a public meeting in its offices on September 9, 2004 in which a representative of TAMU engaged in dialogue with attendees on their comments and suggestions regarding the working draft. From the written comments, verbal comments and suggestions on the proposed draft and the dialog with the various audiences regarding their concerns, the commission revised its draft proposal. Many of the issues raised and comments suggested were incorporated into a final version that was accepted by the commission as a proposal for publication at the commission’s October 5, 2004 Open Meeting.

The proposed new sections were published in the October 22, 2004 issue of the Texas Register and a period of thirty days was provided for acceptance of public comment on the proposed rules. A correction was published in the October 29, 2004 issue of the Texas Register at (29 TexReg 10172) regarding §304.12(g). Notice provided that interested persons could submit written comments (12 copies) on the proposed sections to Susan K. Durso, General Counsel, Texas Residential Construction Commission, P.O. Box 13144, Austin, Texas, 78711. The commission also accepted comments submitted electronically to comments@trcc.state.tx.us, if "Chapter 304 comments" was placed in the subject line. Notice provided that comments sent to another electronic address or that do not have "Chapter 304 comments" in the subject line may not be considered. Comments not timely received were not considered.

Finally, the commission held a public hearing to accept oral comments on the rules pursuant to Tex. Gov’t Code §2001.029 at the commission offices on November 9, 2004. Those who appeared and provided oral comment were Victor Drozd, representing the Bryan-College Station Homebuilders Association (BCSHA); Roger Williams and Shaw Wulfson, who are also with the Bryan-College Station Homebuilders Association (included in references to BCSHA); Robert F. Pierry, Jr., P.E., owner of Roger Bullivant of Texas and representative of the American Society of Civil Engineers (Pierry); Larry Foster (Foster); Scott Norman, Vice President and General Counsel of the Texas Association of Builders (TAB); Mark Eberwine (Eberwine); Steve Pawlowski, Law Offices of Anne Stark, P.C., attorneys representing homeowners and builders (Stark); Glenn Motheral, owner of Austin Design Build of Fort Worth and representing the Greater Fort Worth Builders Association (GFWBA); Janet Ahmad, representing Homeowners for Better Builders (HOBB); Randy Streetman, representing Streetman Homes (Streetman); and Llewel Walters, representing Lennar Homes (Lennar).

The commission received written comments from Brant Roeming, Bonded Builders Home Warranty of Texas (Bonded Builders); John R. Cobarruvias, Homeowners Against Deficient Dwellings of Texas (HADD); Mark Eberwine (Eberwine); W.T. Little (Little); Jay Dyer of TAB; Kimberley Jacobs of BCSHA (BCHSA); James T. Houston, P.E., PhD (Houston); Mark Daigle, Tilson Home Corporation (Tilson); Robert Peirry, Jr. (Pierry); Fred Parker, Fred Parker Company, Inc. (Parker); Janet Ahmad, HomeOwners for Better Building (HOBB); Tom Bothell (Bothell); Sam Beck, Miller Brothers Floors (Miller); John "Chip" Henderson (Henderson); Greg Parish, Parish Electric Co. of Fort Worth, Inc. (Parish); Larry J. Foster, Foster Inspections & Construction Consulting, Inc. (Foster); Doug Larkins, ACES A/C Supply (Larkins); David Grissom, Foundation Performance Association (Grissom); Dennis Vint (Vint); Marius J. Mes, Ph. D., P.E., Foundation Performance Organization (FBO); Carol Baker, Capitol City Insurance Agency (Baker); Jim Poage, texRES - Highland Lakes (Poage); Kimberly Kapavik, Greater San Antonio Builders Association (GSABA); Anne P. Stark and Steven J. Pawlowski, Law Office of Anne P. Stark, P.C. (Stark); Pam Borchert, Victoria Builders Association (VBA); Gregory A. Harwell, Gardere & Wynne (Harwell); and Albert Hernandez, No-Burn of Bexar County (No-Burn).

If the commission received both oral and written comments from an individual or representatives of an entity, the commission will refer to the comment without distinguishing whether the comment was received orally or in writing.

All comments regarding these sections that were properly addressed and timely received, including any not specifically referenced herein, were fully considered by the commission. In addition to revisions resulting from comments received, the commission has made other minor modifications to the proposed sections for the purpose of clarifying its intent and improving style and readability.

The commission received written comments from Bonded Builders and HADD suggesting training for third-party inspectors who are appointed by the commission pursuant to 10 Texas Administrative Code §313.11 (10 TAC §313.11) on the standards set forth in these sections. The commission agrees with Bonded Builders and HADD on this issue and notes that training is required by commission rule 10 TAC §303.207 and by Prop. Code §427.001(d); however, these comments have not resulted in any changes to the proposed text in these sections. Poague added that the term "third-party inspector" should be defined and that such an inspector should be at least International Code Council (ICC) Code combination certified. Third-party Inspectors appointed by the commission meet the requirements adopted by the commission in 10 TAC ch. 303, including the requirement that the third-party inspectors be ICC Code combination certified when required by statute.

Section 304.1(a) sets forth the scope of chapter 304. Eberwine and Foster suggested that the commission revise §304.1(a) by adding the language "and shall comply with the applicable sections of the I.R.C. and N.E.C." to the very last sentence of the subsection. Foster explained that this addition would make clear that all provisions of the Code apply because many readers do not understand that the Code incorporates many standards by reference. The commission agrees that reference to the applicable codes would clarify the commission’s intent and, thus, it has added language to the section accordingly. HADD commented that assigned third-party inspectors should be allowed to make a determination on a defect that is not covered by the adopted performance standards based upon the inspector’s training. However, the proposed language for §304.1(a) is grounded in the statutory language of Prop. Code §401.002 and provides an objective standard for the third-party inspectors. Therefore, the commission declines to make a change based on HADD’s comment regarding this section.

Section 304.1(b) which included the definitions as proposed has become §304.1(c) in the adopted rule. Section 304.1(c) includes definitions to be used in chapter 304. Eberwine commented on the definitions, including that the definition of "adverse effect" should not be limited to habitable areas of the home but also should include the exterior, garage, attic, utility rooms, closets, etc., of a home. Property Code §430.002(b) provides 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. The commission uses the term "adverse effect" in this chapter only as it relates to the warranty of habitability and the commission’s use of the term tracks the statutory language.

On the definition of "builder responsibility," Eberwine suggested clarifications to the definition to make clear whether the parties’ agreement to an alternative remedy could include repairs that were lower than the performance standards adopted by the commission or the International Residential Code (IRC), National Electrical Code (NEC), or manufacturer’s specifications. Once the commission-adopted performance standards are effective, a builder must build to the minimum performance standard; therefore, a builder who repairs a construction defect must repair that defect such that it at least meets the commission-adopted performance 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 performance 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 unsure 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 commission 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 "International 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 municipalities 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 commented 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 conditions 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 "living space" in 10 TAC §301.1(14). "Living space" is defined as the enclosed area in a home that is suitable for year-round residential use. The commission finds this definition self-explanatory and declines to make revisions to this section as a result of BCSHA’s and VBA’s comments. Stark also commented that garage and attic spaces should be included in the definition of "habitable 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 from coverage 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) provides 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 regulations..." 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 commission 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 commission notes that Ms. Stark made a converse argument regarding the definition of "homeowner responsibility"; therefore, the commission has added the idea of "substantial compliance" to that definition to clarify its intent.

Harwell, Foster, Eberwine and Houston commented on the definition 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 structural components. Houston recommended the addition of masonry 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 manufactured structural components" to the definition of "manufactured product." However, the commission finds that such an addition would change the meaning of the section such that it would no longer reflect the commission’s intent. The commission’s reference 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 situation.

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 commission finds that the most practical method for maintaining the elevations would be to require the builder to keep them in the builder’s file for the ten-year period of the warranty. The original homeowner might not retain the elevations or provide them to a subsequent purchaser. The commission does not have the resources to maintain elevation documentation on each home registered with the commission. Finally, it behooves the builder to maintain the original elevation records should future claims regarding the foundation be made. If the builder fails to maintain the elevations or chooses not to take the elevations, the foundation is presumed to be level at plus or minus three-quarters of an inch off level for the entire length of the foundation. Accordingly, it is in the builder’s best interest to maintain the elevations. However, since there is no requirement that builders maintain the elevations, the commission has deleted that portion of the definition.

Another common concern was determining the point in construction when the elevations should be taken. The commission believes that the builder should have the latitude to determine when the elevations should be taken; thus, the elevations should be taken at anytime before substantial completion. Other comments addressed the frequency with which the elevations are taken. Also, Tilson suggested that elevations be taken at the perimeter corners of the home. However, the commission finds that taking elevations at the perimeter corners alone would not provide enough information. Pierry suggested that elevations should be taken at ‘fairly regular intervals on the surface of the entire foundation at a rate of at least one elevation per 100 square feet.’ Harwell offered that to establish original construction elevations the ‘elevations shall be taken at an approximate rate of at least one elevation per 100 square feet, subject to obstructions.’ The commission determined that Harwell’s language provides the best combination of guidance and flexibility, so the definition has been changed in accordance therewith. In addition, the commission has revised the section to require that the elevations depict a reference point and a description of the floor.

Tilson suggested increasing the presumption for construction elevations to be level to one inch; however, the commission finds that plus or minus three-quarters of an inch over the length of the foundation is a reasonable presumption for levelness. A builder has the option to rely on the stated presumption or to take elevations if there is a concern that the presumption does not provide enough latitude.

On the definition of ‘performance standard’ Eberwine commented that the word "should" should be replaced with "must." The commission agrees and has changed the text accordingly. The commission has also added the word "component" to the definition for clarity because the term is used frequently in the performance standards to refer to an element of a home.

On the definition of ‘substantial completion’ Eberwine noted that in paragraph (A) using the term "earlier" could create a situation in which the warranty period has commenced, but the home has not been sold. The commission agrees that such was not the intended result and has changed the definition accordingly. Comments were also received regarding paragraph (C) from Foster, Poage and Eberwine. The suggestions included removing the language regarding the construction lender and adding the requirement that the inspection be performed by an ICC Inspector who has a combination certification. Upon reflection, the commission has determined that requiring an inspection in an unincorporated area would add an unnecessary cost to the homeowner. By deleting paragraph (C) the homeowner or the builder may choose to incur the cost for an inspection prior to closing or occupancy, but neither is required to do so.

Harwell suggested that the commission add a definition for ‘structural failure.’ The commission agrees that the definition would be helpful, but finds that it would be a substantial change to the proposed rules, which requires an opportunity for public comment. Therefore, the commission will adopt a definition in a proposed amendment to the commission’s rule on general definitions.

Section 304.1(d) provides a method for third-party inspectors to resolve conflicts among standards. Stark, Foster and Eberwine all suggested that the commission delete the language regarding agreements between the parties because it may create greater ambiguity or provide an opportunity for lowering a standard below the standards adopted by the commission. The point is well-taken and the language has been deleted. Harwell commented that the inclusion of the Texas Section of the American Society of Civil Engineers Recommended Practice for the Design of Residential Foundations (2002) (ASCE) would cause a dramatic increase in the cost of home construction. Furthermore, these ASCE standards are not definitive, but provide construction options and are preempted by building codes and municipal inspection standards. The commission finds that Harwell’s points are valid and has deleted reference to the ASCE standards in this section. However, ASCE standards are used in the proposed performance standards when the commission determined that they provided the most objective standard for evaluating an alleged construction defect. GSABA suggested the addition of the "Guidelines for the Evaluation and Repair of Residential Foundations (2002); however, the commission declines to include those standards for the same reasons it is deleting the ASCE standards in this conflicts section.

Section 304.2 provides for general provisions that relate to all new residential construction to which the commission-adopted performance standards will apply. Section 304.2(a) states builder’s responsibilities, §304.2(b) states exceptions to the builder responsibilities and §304.2(c) states homeowner responsibilities. Section 304.2(a)(1) provides that the builder is responsible for all work performed under the builder’s direction for the period of the applicable warranty and incorporates statutory timetables for making a request to initiate the state-sponsored inspection and dispute resolution process that is in Property Code §426.005(b). Stark expressed concern that subsection (a)(1) could be misconstrued to suggest that the warranty of habitability was only for two years. Stark suggested amendment to §304.3 to include language that the warranty of habitability is ten years. The commission has added language to §304.3 to clarify that the warranty of habitability is a ten year warranty.

Poage suggested that §304.2(a)(1) should address third-party inspections that take place prior to completion of construction and commencement of the warranty period. However, the commission-adopted performance standards are used to evaluate construction performance after the warranty period commences.

Section 304.2(a)(2) addresses a builder’s responsibility regarding recommended repairs if the builder makes repairs as a result of a third-party inspector’s report, or if that report is appealed, the recommendations of the appellate panel. Foster suggested that the section reference that the repair be consistent with the Code, as did Poage and Eberwine. Eberwine also suggested that the section make clear that any agreement made by the parties with regard to repair cannot fall below the strictest standard. The commission agrees that the builder who undertakes a repair recommended by a third-party inspector pursuant to §313.14 of this title shall make the repair consistent with the Code, the performance standard or §304.2(a) of this chapter. If the inspector does not make a recommendation for repair, the builder who undertakes to make a repair shall make it in accordance with the Code or the usual and customary building practices, or as agreed by the parties, so long as any agreed upon repair does not fall below the Code or the performance standard, whichever is strictest.

With regard to §304.2(a)(3), repair condition, Eberwine suggested that the commission replace the word "cosmetic" with the word "proper". The commission declines to accept the suggestion; however, it has revised the section to better state its intent.

Section 304.2(a)(4) refers to correcting finishes after a repair. Both Harwell and Streetman suggested that the language "acceptable to the homeowner" may create unnecessary controversy and that the section could be improved. The commission accepts Harwell’s suggestion to delete "acceptable to the homeowner" and add "substantially similar in appearance."

HADD expressed concern on the §304.2(a)(5) provision regarding "manufactured products" that latent defects would be excluded. However, the proposed text provides that a homeowner must notify the builder of a defect within two years of discovery or not later than thirty days following the applicable warranty period provided in §304.3(a). This section incorporates that statutory timetable for making a request to initiate the state-sponsored inspection and dispute resolution process.

Parker and Eberwine addressed §304.2(a)(6) regarding design standards. Parker interpreted the section to require homeowners to sign off on all house plans, including speculative homes. Eberwine expressed concern that the section on design standards may allow designs to fall below commission-adopted performance standards. Based on the comments the commission has decided to label this section "specialty features." The commission does not intend that homeowner’s sign off on all house plans, including speculative homes. The commission’s intent is to allow builders to accommodate special design features into construction that may not meet the performance standards adopted by the commission; however, even if special design features, such as rough-textured dry-wall, do not meet the performance standard for surface depressions, the wall still must be built in accordance with the Code.

Stark opined that §304.2(b), which describes exceptions and exclusions to the builder’s responsibilities for repair, loss or damage to a component of a home, should track the language of the Residential Construction Liability Act (RCLA) regarding percentage of responsibility. The builder’s responsibility is to repair or replace components that have construction defects that are the result of actions taken by the builder or at the builder’s direction. The commission finds that the exclusions and exceptions listed in §304.2(b), as revised for adoption, appropriately limit the builder’s responsibilities for repair. However, to ensure that if a portion of a component is defective, lost or damaged as a result of construction activities, the commission has revised the proposed language to include portions of a component. Foster and Eberwine suggested that builders should supply maintenance and care manuals to homeowners. The commission understands that new homeowners may not be aware of home maintenance and care requirements; therefore, the proposed sections offer maintenance information when such is necessary and adds clarity to the performance standard. Further, the commission has plans to publish maintenance guidelines to assist new homebuyers in caring for their investment.

Foster suggested that the exclusion in §304.2(b)(1)(D) for alterations to the grade of soil should be limited to alterations that are not in compliance with the IRC. Eberwine made a comment similar to Foster’s. The commission agrees with Foster’s suggestion and adds that the exclusion should only apply to alterations that are not in compliance with the IRC or applicable government regulations. Poague suggested that the proposed language would cause builders to fail to properly grade the soil so as not to be responsible for grading at all. However, the commission does not agree because builders are required to comply with the IRC and applicable governmental regulations when undertaking residential construction projects.

Stark commented on the exclusion for changes to the underground water table that may affect the home in §304.2(b)(1)(I). She recommended that foundations be deleted from this exclusion because a builder may argue that wet weather conditions on highly expansive clay soils is a change in the water table. Foster raised the issue of the builder’s responsibility for actions taken at the time of construction that may affect the water table. Houston, Eberwine, HADD and HOBB made similar comments. The commission agrees that a change in the water table that is the result of remedial actions taken or not taken by the builder at the time of construction is a part of the builder’s responsibilities.

HADD and Poage both submitted comments on the exclusion for erosion or accretion of soils that are not the result of a construction defect in §304.2(b)(1)(J). The commission declines to make a change to this exclusion. It is clear from the language of the proposed text that erosion or accretion of soils that are the result of a construction defect are the responsibility of the builder.

Regarding §304.2(b)(1)(P), Harwell stated that the exclusion for damage caused to existing trees, shrubs or other plants that result from the work necessary to construct the home is "somewhat ambiguous." Stark and Houston opined that the builder should be responsible for taking existing vegetation into account when building a home and planning the foundation. Eberwine questioned the need for such an exclusion. HADD wanted to add language "unless the builder planted them." The commission has determined that the exclusionary language is not clear and has deleted it.

Regarding §304.2(b)(1)(R), Eberwine stated that remodelers should be able to correct existing conditions that do not meet performance standards during construction so there should be no exclusion from performance standards for those that cannot be achieved as a result of pre-existing conditions. The commission does not agree because conditions may exist that prevent a remodeler from achieving certain performance standards when undertaking construction on an existing home.

Foster, Poage, HADD and Eberwine all expressed concern that if the builder is not responsible for a condition that does not cause actual physical damage as stated in §304.2(b)(2), some problematic conditions would be allow to stand uncorrected until a disastrous situation occurred. However, the proposed language provides that the exclusion does not include conditions that are the result of a construction defect. Accordingly, if the condition is a direct result of a construction defect, the builder is responsible for correcting the condition. HOBB stated that the exclusion was in violation of HUD standards, but the commission finds that those standards are not subject to exclusion.

Section 304.2(c) discusses a homeowner’s responsibilities including home maintenance under §304.2(c)(1). Foster, Stark, Houston and Eberwine all provided comments on the requirements that homeowners perform periodic soil maintenance on their homes and lots under §304.2(c)(3) and all suggested that the builder has some level of responsibility for providing homeowners with guidance on maintenance. The commission agrees that soil maintenance should be covered in a maintenance guide and not the performance standards. Therefore, the commission deleted the provision.

Similar comments were provided by Foster, BCSHBA, Eberwine and HADD regarding landscape watering under §304.2(c)(4). However, the commission finds that the proposed language offers straightforward guidance regarding the need to avoid excessive moisture accumulation near the foundation and an explanation of how landscape watering may create an imbalance in moisture that could affect the foundation performance.

Harwell suggested revised language for the landscape planting provision in §304.2(c)(5) and the commission agrees with the suggested language. Therefore, the commission has modified the section in accordance with Harwell’s revisions. Foster raised the issue of providing the homeowner with information on landscape planting, but the commission has addressed that issue and agreed that homeowners may need guidance. Therefore, in addition to the changes made, guidance will be provided in another document. To the extent that Foster has made a similar comment regarding other homeowner responsibilities, the commission believes the issue has been addressed. HADD raised a comment about grading as it relates to landscaping, but soil grading is addressed elsewhere in the standards.

HADD, Eberwine and Foster raised questions about how a homeowner might prevent excessive moisture accumulation as required in §304.2(c)(6). As a result of the comments, the commission has revised the section to better explain its intent that homeowners have a responsibility to recognize that there are conditions that may cause damage if left unabated and to utilize ventilation equipment as needed to alleviate those conditions.

Eberwine maintained that if a homeowner is responsible under §304.2(c)(7) for chemicals found in tap water, then the builder should provide information on the chemical content of the water. The language to which Eberwine refers was offered as explanatory and is not necessary to understand the meaning of the maintenance requirement. The commission deleted the second sentence to alleviate the problem.

Eberwine also commented on §304.2(c)(8) that the builder should also be required to take reasonable action to prevent further damage to the home under the section entitled "self-help." The commission included this section to address the issue of mitigation of damages. If a homeowner discovers that the washing machine is overflowing from the drain, the homeowner should turn off the water to prevent further damage and sop up the spillage to avoid further damage to flooring and walls. The builder cannot take action without notice of a problem. The commission finds that the section is clear and does not need revision as suggested by Eberwine.

Section 304.3, Limited Warranties, has been revised as a result of a comment made by Stark that the warranty period for the warranty of habitability was unclear. The commission has added language to clarify that the warranty of habitability is a ten-year warranty.

The commission received similar comments from VBA, BCSHBA, and Parker on §304.3(b) that the Magnuson Moss Act provides all the coverage needed to a consumer regarding the warranties on manufactured consumer products. Tilson requested the deletion of the last sentence that requires the builder to take action to correct a warrantable manufactured product if the manufacturer timely fails to take action. The commission finds that a builder is responsible for providing quality products to homebuyers. If the manufacturer fails to comply with its warranty provisions within a reasonable period of time, the builder should bring the condition into compliance with the performance standard and seek redress from the manufacturer. The builder is not required to warrant the product in any greater degree than the terms of the manufacturer’s warranty under this subsection.

Harwell suggested that the language "foundations and major structural components" under §304.3(e) is redundant and that only ‘major structural components’ is necessary. The point is well-taken and the commission has revised the subsection accordingly.

Regarding §§304.3(f)(2) and 304.3(f)(3), the commission received comments from Harwell, TAB, Little, Poage, Stark and HADD. The language of the section as proposed incorporated the terms stated in Property Code §430.002. However, Harwell provided a suggested revision that better states the statutory requirements. The other comments received are either addressed by the changes suggested by Harwell, are covered elsewhere in the proposed sections (e.g. the definition of habitability or the length of the warranty period) or contradict the statutory provisions regarding the warranty of habitability.

Regarding §304.3(f)(4), Eberwine correctly noted that a request to participate in the state-sponsored inspection and dispute resolution process for a breach of the warranty of habitability must be made within two years of the date of discovery of the alleged construction defect but not later than "thirty days" after the effective date of the warranty period. The commission has made that correction.

Property Code §430.007 prohibits the inclusion of a provision in a contract between a homeowner and builder that would waive the limited statutory warranties and building and performance standards adopted by the commission pursuant to Property Code ch. 430 and specifically provides that the parties may contract for more stringent requirements. Although the commission received comments from Tilson and Eberwine seeking to change §304.3(i), which restates Prop. Code §430.007, the commission declines to make the suggested changes because the proposed text is substantially similar to the statutory language supporting it.

With regard to Subchapter B, the Performance Standards for Component of a Home Subject to a Minimum Warranty of One Year for Workmanship and Materials §§304.10-304.33, the commission received several comments throughout regarding the meaning of "construction activities," including comments from HADD regarding most sections in which the term is used. The commission will adopt a definition for "construction activities" in a rule amendment proposed contemporaneously with the approval of these sections to clarify that it means the actions taken by a builder or remodeler, or an employee, agent, contractor or subcontractor of a builder or remodeler, or anyone acting at the direction of the builder or remodeler during the building process of building or remodeling the home.

Section 304.10(a): Foster and Eberwine commented on the performance standard for grading in a crawl space. Both expressed concern that grading should not permit water to stand in a crawl space. The commission finds that use of the term "surface runoff" as opposed to "water" and use of the term "accumulate" as opposed to "stand" will more accurately reflect its intent. The commission agrees that grading should be such that surface runoff does not accumulate in a crawl space and that exterior drainage around a perimeter crawl space wall shall not allow water to stand within ten feet of the foundation, except in a sump that drains into other areas. The commission has determined that the provision related to exterior grading is consistent with standards used in other states. Eberwine also commented that the homeowner should be allowed to modify existing grading so long as the modifications are properly done. The commission agrees and has modified the text to reflect its agreement.

With regard to §304.10(a)(2)(B) Eberwine also commented that homeowners should be allowed to make proper modifications to grade. Again, the commission agrees and has modified the text.

The commission received comments from Foster, VBA, Poage, Bonded Builders, Tilson, Eberwine, Houston, TAB, Parker and BCSHBA on §304.10(b)(1). This proposed section provides that concrete slab floors in living spaces, excluding finished concrete floors and intentionally sloped floors, shall not have excessive pits, depressions or unevenness equal to or exceeding 3/8 of an inch in any 32 inch measurement and shall not have separations or cracks that equal or exceed 1/16 of an inch in width or 1/16 of an inch in vertical displacement. Foster, Poage and Houston complained that the standard for unevenness, at 3/8 of an inch in any 32 inches, is excessive. In addition, Houston and Poage raised a question as to whether this standard could be construed as applying to the levelness of slabs foundations. The commission finds that the 3/8 of an inch measurement in 32 inches refers expressly to issues of depressions, pits and unevenness of the surface, not levelness, which is addressed in §304.100, regarding tilt in slab foundations. The commission does not find that the measurement is too lax. VBA, Bonded Builders, Tilson, TAB, Parker and BCSHBA all noted that the standard for separations and cracks of less than 1/16 of an inch in width and 1/16 of an inch in vertical displacement is too tight and is inconsistent with related performance standards regarding flooring. VBA added that repair of a 1/16 of an inch wide crack may create more damage than allowing it to stand. Based on the fact that the proposed performance standard for a finished concrete floor prohibits a crack of less than 1/8 of an inch in width and such is the current industry standard , the commission has modified the proposed text in this section to 1/8 of an inch as it relates to the width of a crack or separation, but not as to vertical displacement. The commission finds that if a vertical displacement of 1/16 of an inch is discovered in an interior concrete slab in the first year, it should be considered a construction defect.

Within the same performance standard, §304.10(b)(3), on concrete slabs, the proposed text provides that a separation in an expansion joint or a control joint shall not equal or exceed one-quarter of an inch vertically or one inch horizontally from an adjoining section because of settlement, heaving or separation. Houston commented that the one inch horizontal separation at a control joint is excessive and added that the one-inch standard is inconsistent with other performance standards regarding horizontal displacement. Eberwine noted that the language of "settlement, heaving or separation" opens the door for conflicts regarding the reason for the displacement. First, the commission finds that control joints are rare in foundations in residential construction; therefore, it has deleted the reference to control joints in this subsection and in subsequent standards that reference control joints. Second, the commission agrees with Eberwine that the language regarding the cause for movement and deletes the reference to the cause of the separation. However, the commission finds that proposed measurements for horizontal and vertical movement at a separation joint between concrete slabs is appropriate given that the purpose of the separation joint is to allow room for movement.

Section 304.10(c) states the performance standards for exterior concrete. The commission received numerous comments on the performance standards for cracks appearing in exterior concrete flatwork as provided in §304.10(c)(2). VBA, Tilson, Parker, Streetman and BCSHA complained that the performance standards were too stringent for exterior concrete work that is exposed to the environment and that requiring performance to the stated standard would increase costs of construction. Foster, Stark and Eberwine conversely argued that the standard was too lax and that builders should be able to construct flatwork that did not have cracks 1/4 of an inch or greater within the first year. The commission finds that heretofore exterior concrete flatwork has not been warranted typically in the residential construction industry. Furthermore, exterior concrete flatwork is subject to elements, such as varied soil moisture or external pressure, that may affect its performance and requiring all exterior concrete flatwork to be constructed with reinforcement materials would increase the cost of construction. For these reasons, the commission believes that the standard as proposed provides reasonable performance for a one year period. Thus, the commission declines to make any changes to the performance standard as stated in §§304.10(c)(1)-304.10(c)(2)(B).

In §304.10(c)(2)(B) the commission has included a statement of the homeowner’s responsibility of reasonable maintenance of uniform soil moisture content around exterior flatwork and also for preventing heavy equipment to be parked on the flatwork. Foster and Eberwine have taken issue with these exclusions stating that a builder should be building for given soil and weather conditions and Eberwine declares that use of the term "heavy equipment" is unclear. Little asked that the commission delete this section entirely because of the potential for heavy equipment to be placed on exterior flatwork. The commission believes that homeowners have some obligation to be aware of conditions around their homes and to maintain them by use of reasonable care. Further, the commission finds that the term "heavy equipment" is a term of art commonly used and understood in the construction industry. In addition to the comments received, commission has determined that the language in §304.10(c)(2)(C) is superfluous and has deleted this paragraph.

Houston, Eberwine and Streetman made similar comments regarding §304.10(c)(5), which addresses the performance standard for horizontal and vertical movement in expansion joints in exterior concrete flatwork as they made regarding §304.10(c)(2), which addresses horizontal and vertical cracks in exterior concrete. Streetman stated that expansion joints are incorporated into flatwork to permit movement between the slabs and that at least a one-half of an inch horizontal displacement rather than one-quarter of an inch should be allowable. Foster recommended that the commission reduce the proposed performance standards to one-quarter of an inch vertical separation and one-half of an inch horizontal separation. Foster based his recommendation on ACI standards and "old FHA and VA Minimum Property Standards." Foster also noted that ergonomic studies regarding walking and climbing stairs and the IRC standards for stair variations. The proposed performance standards in this section do not include exterior stairs, which are addressed elsewhere. The commission again bases its performance standards for exterior flatwork on the fact that exterior flatwork has previously was not included in warranties for residential construction and that exterior flatwork is subject to external elements that affect its performance to a greater degree than interior concrete. Further, with regard to expansion joints, the purpose of the joint is to permit movement in recognition of the external elements that can cause exterior concrete surfaces to move. Therefore, the commission declines to accept any of the suggested changes to the performance standards in this section.

Section 304.10(c)(6) provides a standard of performance for vertical and horizontal separations at control joints in exterior concrete flatwork. Eberwine, again, suggested deleting the portion of the standard that refers to cause for separation. For the reasons stated above, the commission agrees and changes the language accordingly.

Foster and Eberwine provided comments on the performance standard for separation of exterior concrete stairs from the home in §304.10(c)(9). Eberwine reiterated his suggestion that including a statement regarding cause for separation from the home would cause unnecessary debate and the commission agrees. Foster stated that the proposed one-inch tolerance was too great. The commission has determined that one inch is appropriate but that to improve clarity the paragraph needs modification to provide that the measurement includes any joint material.

Section 304.10(c)(11) addresses depressions, pits, unevenness and separations or cracks, not at expansion joints, found in concrete floor slabs that are not included in living spaces, but in detached garages, carports and porte-cocheres. Stark’s comment demonstrated that the standards as proposed were not clear with regard to garages that are not a part of a monolithic slab. Accordingly, the commission added the term "detached" before "garage" to provide clarity. Although Tilson commented that the tolerance of less than 3/16 of an inch in the width of cracks and separations is too small, the commission is satisfied that the performance standard proposed is not too small for a one year warranty period if the problem is one of workmanship and materials.

HADD noted that the proposed performance standards for exterior concrete do not include the construction of a driveway that is too steep. The commission considers this to be a design issue and not a performance issue.

Section 304.11 sets forth performance standards for framing. Subsection (a) provides that a wall shall not bow or have depressions that equal or exceed 1/4 of an inch out of line with any 32-inch horizontal measurement as measured from the center of the bow or depression or 1/2 of an inch in any eight-foot vertical measurement. VBA, Parker and BCSHBA all asserted that the "National Guideline" is that a wall shall not have bows or have depressions that are "greater" than 1/2 of an inch in any eight foot measurement. The "National Guideline" to which they refer is the National Association of Home Builders (NAHB) guidelines. In arriving at the proposed standards and allowances for performance the commission has tried to balance the competing interests of homebuilders for keeping costs low and the interests of homebuyers to purchase a well-built home that functions as intended and that is aesthetically pleasing. The commission has determined that a better standard for framing is that the measurement should be less than 1/2 of an inch; therefore, it declines to make the suggested change.

Section 304.11(a)(2) states that walls must be level, plumb and square to all adjoining openings or other walls within 1/4 of an inch in any 32-inch measurement. VBA, Parker and BCSHBA again refer to the NAHB guidelines and suggest that the appropriate standard should be "equal to or greater than 3/8 of an inch in any 32-inch measurement…" Foster avers that the IRC standard for wood frame construction is a maximum out-of-plumb at 3/4 of an inch in an eight-foot measurement and that changing the standard to 3/8 as suggested would exceed that maximum standard. Houston maintains that the proposed variance for plumb at 1/4 of an inch in 32 inches is excessive and should be considered a poor construction practice. The commission finds that the current standard is actually 3/4 of an inch in a 32-inch measurement; therefore, the commission agrees with the builder representatives that the 1/4 of an inch standard is too tight. Accordingly, the commission has revised the standard to "within 3/8 of an inch in any 32 inch measurement…"

In §304.11(a)(3) provides that a crack in a beam or post shall not equal or exceed 1/2 of an inch in width at any point along the length of the crack. Foster suggested adding the language "or it is determined that the beam or post is no longer capable of carrying its design loads." The commission agrees that it is paramount in framing that a beam or post be able to carry its design loads and that the failure to do so would be a construction defect. Foster’s suggestion addresses the concern raised by Eberwine that a beam or post must function as intended. Also, several builder representatives (VBA, ADB and Parker) pointed out that the appropriate terminology is beam or post and not "post and beam," which is a framing detail.

HADD commented that the language in §304.11(a)(4)(B) appeared to create an excuse for warped beams and posts because it notes that posts and beams are subject to drying and cracks may result. The commission has determined that such explanatory information is superfluous to the performance standard and therefore, that language has been removed.

Section 304.11(a)(5) provides that exterior sheathing shall not delaminate or swell. Tilson called into question use of the term "sheathing," which is a material applied to the exterior of the home for bracing or insulation and suggested that the correct term should be "siding." Eberwine suggested that the proposed remedy should be worded to provide that if the sheathing failed to meet the performance standard the builder shall "replace the sections [affected.]" With regard to both comments, the commission finds that the section accurately expresses the performance standard as the commission intended. Accordingly, the commission made no revisions as a result of these comments.

Section 304.11(b) states the performance standards for ceilings. Subsection (b)(1) provides that ceilings shall not bow or have depressions equal to or exceeding 1/2 of an inch out of line within a 32-inch measurement as measured from the center of the bow or depression running parallel with a ceiling joist. Foster and Eberwine both suggested that the standards should not allow a bow or depression to equal or exceed 1/4 of an inch in a 32-inch measurement. Foster also felt that the standard is inadequately defined for an inspector to know how to take such a measurement; however, he offered no alternative language.

The commission has determined that the ceiling standard for framing is the same as the ceiling standard for ceilings constructed of drywall and that the standards of both as proposed is appropriate and acknowledges the difference between construction of a ceiling and construction of a wall. With regard to the method of measurement, the commission has made the standard more clear by stating that the measurement shall be from the center of the bow or depression running parallel with a ceiling joist or within 1/2 of an inch deviation from the plane of the ceiling within any eight-foot measurement.

Section 304.11(c) states the performance standards for sub-floors. Eberwine took issue with including a statement of cause for floors that emit excessive noise during normal residential use in subsection 304.11(c)(1) and 304.11(c)(1)(A). The commission agrees and has revised the standard. For subsection 304.11(c)(2) regarding damage to the subfloor as a result of delamination or swelling, Eberwine suggested the addition of "or can be felt through the floor covering when walked upon." However, the proposed text provides that delamination or swelling of the subfloor should not result in "observable physical damage" to the floor covering. The commission believes that use of the term "observable" encompasses observation as a result of use of any of the senses. Foster recommended that the standard for ridges and humps in subfloors, which is proposed to be less than 3/8 of an inch in any 32 inch measurement, should be 1/4 of an inch in any ten foot measurement. The proposed standard for subflooring is consistent with the proposed standard for floor coverings. The commission has relied on the input of TAMU in developing standards that offer the homebuyer sound construction without unnecessary or prohibitive increases in cost. This proposed standard achieves the commission’s goal and thus will not be changed as a result of Foster’s comment.

Section 304.11(d) includes performance standards for stairs. Poage and Eberwine both provided comments on the language used to describe the standard for excessive noise resulting from stairs subjected to normal residential use. Eberwine again commented on the issue of cause "directly attributable to loose stair treads or framing" and the commission agrees with his comment. Poage commented that requiring the builder to bring stairs that make excessive noise to within the stated standard creates a loophole, because the builder should bring the stairs to within Code. The overall requirement for performance presumes that construction is built at least to the applicable Code; therefore, there is no need to alter the standard as proposed.

Section 304.12 states the performance standards for drywall. Subsection (a) states the standard for bows and depressions; subsection (b) states the standard for ceilings made of drywall; subsection (c) states the standard for cracks in drywall; subsection (d) states the standard for crowning in drywall; subsection (e) states the standard for ridges and beads appearing at drywall joints; subsection (f) states the standard for drywall surface imperfections, such as blisters and trowel marks; subsection (g) states the standard for levelness of a drywall surface; and subsection (h) states the standard for the visibility of nails or screws in a drywall surface. Although the commission received comments from VBA, GSAB, Parker, BCSHBA, Tilson and ADB suggesting that the standard in subsection (a) that a bow or depression in a drywall surface shall not equal or exceed one-quarter of an inch out of line within any 32-inch horizontal measurement or one-half of an inch in any eight-foot vertical measurement, is too stringent as compared to the NHAB guidelines. The standards stated for walls and ceilings constructed with drywall in subsections (a) and (b) are consistent with the standards stated for framing in §304.11. For the same reason the commission declined to make changes to the proposed standards for wall and ceiling framing based on the NHAB guidelines, the commission declines to make those same suggested changes for walls and ceilings constructed of drywall.

Foster and Eberwine made suggestions for revising the proposed text in subsections (a) and (b) that they thought would clarify the text. However, the commission does not find that the suggestions of either offer any clarification to the commission’s intent, so the commission declines to accept the suggestions.

On subsection (b) regarding ceilings, Foster also expressed concern that the proposed standards would permit deflection of the ceiling up to two and a quarter inches in a twelve-foot room. The commission believes that if each measurement is taken in accordance with the language in the proposed text, drywall ceilings that are performing as proposed will not have bows and depressions that allow the ceiling to deflect from one end of the room to the other to a degree of two and a quarter inches.

Comments from builder representatives, including VBA, Tilson, Parker, Lennar and BCSHBA all protest that the performance standard that does not permit cracks equal to or greater than 1/32 of an inch during the one year warranty period for workmanship and materials is rigorous and that a better standard would be one-sixteenth of an inch. Conversely, Eberwine stated that any crack appearing in drywall during the first year is too great. Stark concurred with the commission that the proposed standard is reasonable. The commission having evaluated these comments concludes that the standard as written is reasonable when balancing the competing interests of consumers and the construction industry.

Section 304.12(d) provides that crowning at a drywall joint, which is when the drywall joint is higher than the plain of drywall board on either side of the joint, should not equal or exceed one-quarter of an inch within a twelve-inch measurement centered over the drywall joint. Foster declared that the performance standard should be one-sixteenth of an inch in the same measurement because anything as large as one-quarter of an inch is a "bulge." He further stated that the gypsum industry standards are less than one-quarter of an inch. Section 304.1(c) provides a method for resolving conflicts among standards. If the manufacturer’s standard is more stringent than the performance standard adopted by the commission, the more stringent standard applies. Eberwine expressed concern that this standard for crowning at drywall joints would permit a bumpy surface of one-quarter of an inch bumps at every drywall joint when measured perpendicular to the surface. However, the commission finds that with the other standards for drywall surfaces, the drywall surface standards should achieve aesthetically acceptable uniformity for walls and ceilings covered in drywall. GSABA suggested that the standard could be made better by adding an exception for corner beads, which are designed to be embedded in a coat of drywall compound because different manufacturers’ products vary at the level that they protrude. GSABA and BCSHBA suggested that crowning along corner beads should not equal or exceed three-eighths of an inch within any twelve-inch measurement. The commission concurs with the GSABA and BCSHBA comments and has revised the proposed standard to incorporate the suggested language.

As a result of Eberwine’s query as to how one would reconcile subsection (e) regarding ridges along drywall joints and subsection (d) regarding crowning, the commission has reconsidered the need for subsection (e) as proposed and has deleted it.

In several of the performance standards proposed, the commission received various comments from builder industry representatives regarding use of the term "natural light" rather than "normal light." Those providing comments noted that because of the variety of lighting conditions that may exist from home to home, it is better to consider each alleged defect in the lighting conditions normal for that particular home, rather than "natural light," which suggests sunlight. The commission agrees with these comments and has replaced "natural light" with "normal light" throughout the standards. Eberwine suggested that in addition to changing the visibility standard for surface imperfections regarding lighting that the surface should be viewed for imperfections from a distance of two feet as opposed to six feet. The commission finds that the standard is intended to promote an appearance of overall uniformity of a surface and that six feet is a more reasonable distance from which to view a surface and gauge the overall appearance. Accordingly, the commission has not reduced the distance from which a drywall surface should be viewed for uniformity.

Foster, Little and TAB commented that §304.12(g) regarding the levelness, plumbness and squareness of a drywall surface, should read "shall not be out of level" and Tilson made a similar comment as a result of an accidentally omitted "not" in the sentence when published. This was an inadvertent error and a correction notice was published by the commission in the October 29, 2004 issue of the Texas Register as noted above. GSABA and BCSHBA averred that the standard should be deleted because it was already addressed in other standards; however, the commission finds that this is a necessary standard to address the performance of a drywall surface. Eberwine raised an important issue with regard to remodeling existing homes in which the pre-existing conditions may make compliance with this performance standard difficult. He suggested that in order to qualify for the exclusion for pre-existing conditions that do not meet the standard, the builder or remodeler must notify the homeowner prior to the commencement of work that the standard cannot or will be difficult to achieve. Eberwine’s point is well-taken; however, some conditions may not be apparent prior to the commencement of work. Therefore, the commission has modified the section to incorporated Eberwine’s notice of notice, but has revised it to reflect that construction may have commenced. Eberwine suggested that the commission expand the performance standard regarding visibility of nails or screws in drywall surfaces by adding that nail or screws should not create depressions or outlines that are visible in drywall surfaces. However, the commission finds that the issues raised by this comment are addressed by other performance standards regarding drywall performance.

Eberwine offered additional language for the performance standard for insulation under §304.13(a) to make clear that insulation must be installed in accordance with building plans and the Code. Further, he provided language to address that the absence of insulation in unheated and non-air-conditioned areas of the home may affect the performance in heated and cooled areas. Eberwine also suggested that the term "restricts" is better than "blocks" when discussing the impairment of a soffit vent by insulation. The commission adopted the substance of Eberwine’s suggestions in this section but not the precise language. Tilson suggested that the commission refine the language regarding gaps between batts of insulations or adjacent framing by including a measurement of three-eighths of an inch as the maximum allowable gap. The commission has determined that 1/4 of an inch is a better standard and has made clear that there is an allowable gap between batts but no allowable gap between a batt and a framing member. By adding the measurement between batts, the standard now addresses the concern stated by Lennar that the standard would effectively eliminate the use of batt-type insulation.

Section 304.14 addresses various performance standards for exterior siding and trim. More than one comment was received regarding the different performance standards that may be affected by the use of natural wood siding as opposed to a manufactured siding product that has uniformity. The commission considers natural wood siding to be a specialty feature that should be addressed per contract specifications, including the fact that natural wood varies and has imperfections that are natural characteristics of wood. The performance standards for exterior siding presume the use of a manufactured siding product that has greater uniformity from piece to piece. VBA and Parker maintain that the requirement that siding be equally spaced and aligned such that it shall not be more than one-quarter of an inch off parallel with the adjacent course of siding from corner to corner is too rigid a measurement. Eberwine’s comment indicated that he did not understand the meaning of the terminology "corner to corner" as used in the proposed standard. However, the commission does not find that the standard is too difficult to achieve or that proposed standard is unclear because by referring to the adjacent course, the standard makes clear that the measurement is relative to the abutting course of siding at a corner.

In §304.14(a)(3), the proposed performance standard does not permit nails to protrude from the finished surface of siding, unless such is within the manufacturer’s specifications for installation. The commission has revised the section to make more clear that if nail heads are visible it must be in accordance with manufacturer’s specifications by adding language to §304.14(a)(3) and deleting §304.14(a)(3)(B). Eberwine commented that the cure for siding that exhibits nail stains should be to replace the siding nails. However, the commission believes that the suggested remedy would cause more damage to the siding than alleviating the rust condition.

Section 304.14(a)(6) states that siding shall not delaminate or cup in an amount equal to or exceeding one-quarter of an inch in a six foot run. Eberwine suggested that the more appropriate standard would be that siding shall not delaminate or cup at all. ADB suggested that the measurement should be one- quarter of an inch in a 32 inch run. The commission finds that the proposed standard achieves the best balance between adequate performance and cost to construct to the standard. However, the commission has separated the two standards for delamination and cupping to improve clarity.

Similarly, the commission has proposed that siding shall not have cracks or splits in an amount equal to or exceeding one-eighth of an inch in width. ADB suggested that the appropriate standard would be one-quarter of an inch, which the commission finds is too great, and HADD suggested that siding should not have splits or cracks of any size, which the commission finds too rigid. Accordingly, the commission has not revised this section as a result of the comments received.

Subsection (b) of §304.14 addressed the performance of exterior trim. Eberwine professes that trim joints shall not have any separation and should not be caulked. Construction costs outweigh the benefit of permitting a small separation that is caulked and further joints may experience expansion and contraction depending upon weather conditions. Stark had issues with requiring caulk between trim and regularly shaped masonry units such as brick. However, the joints between trim and masonry surfaces are addressed in the performance standards related to masonry.

The commission received comments from stakeholders on several of the subsections related to the performance of exterior trim that suggested that the measurements proposed for cupping, warping, cracks or splits should be larger or smaller depending upon the alignment of the stakeholder. However, upon review, the commission finds that the measurements it has proposed for performance standards are neither too difficult to achieve nor too lax a standard. In reaching this conclusion the commission has considered the potential additional cost for construction, the reasonable expectations of the home buying public for the performance of a well-built home within the first year. Like the performance standards for the visibility of nails from the finished surface of exterior siding, nail heads shall not protrude from the finished surface of exterior trim, although the presence of the nail may be detectable on some products. Likewise, if trim shows a nail stain, the builder must alleviate the stain. Accordingly, the commission has not revised the performance standards proposed for exterior trim as a result of the comments received from Eberwine, ADB, Streetman and BCSHBA.

Section 304.15 and its subsections address the performance standards for masonry, including brick, block and stone. Subsection (a) provides that a masonry wall shall not bow in an amount equal to or exceeding one inch in any eight-foot length when measured from the base to the top of the wall. Houston and Eberwine both asserted that the standard would allow a wall in excess of eight feet high to bow excessively. As a result of these comments, the commission has revised the stated standard to provide that a masonry wall may not bow in an amount equal to or exceeding one inch when measured from the base to the top of the wall. Subsection (c) provides that masonry mortar shall not have cracks that equal or exceed one-eighth of an inch in width. VBA, Parker, Lennar and BCHSHBA opined that a more realistic measurement for masonry mortar cracks would be 3/16 of an inch. HADD, Eberwine and Houston all asserted that one-eighth of an inch was too great. HADD’s comments indicate that it is not differentiating between cracks in mortar and cracks in the brick unit. However, the performance standard addresses masonry mortar and mortar shrinks as it cures. As a result of shrinkage, mortar may exhibit superficial cracking that does not affect the integrity of the structure. Therefore, the commission declines to either increase or decrease the proposed performance standard.

Section 304.15(d) states that masonry units and mortar shall not deteriorate. Although Houston, Eberwine and HADD expressed a variety of concerns ranging from how to determine the quality of the brick unit installed to addressing the performance of the moisture barrier that is behind masonry, the commission finds that this performance standard is clear and expresses the appropriate expectation for masonry unit and mortar performance.

In like fashion to §304.15(d), §304.15(e) states that masonry shall not have dirt, stain or debris on the surface as a result of construction activities. Again, the commission believes that the performance standard as stated is reasonable and sets a clear expectation. Although, Baker suggested that the performance standard should state the method for removing dirt, stain or debris, the commission prefers that the builder determine an acceptable method to bring the masonry to within the expected performance standard and that the remedy may depend upon the cause of the failure to perform.

Section 304.15(f) as proposed set forth the performance standards for gaps between masonry joints. All of the comments received on this section indicated confusion and consternation with the commission’s intent. The confusion expressed is understandable because the commission intended to refer to gaps between masonry units and adjoining surfaces, which is addressed in the next subsection. Therefore, the commission has deleted this subsection.

Gaps between masonry units and adjacent materials shall not equal or exceed one-eighth of an inch and all such gaps shall be caulked. The comments of VBA, Tilson, Parker, Lennar, Eberwine and BCSHBA all addressed the differing expansion rates between adjacent surfaces and that various textures may have gaps greater than one-eighth of an inch. All except Eberwine offered that the appropriate measure for such a gap should be less than one-quarter of an inch in average width. Eberwine included that the gaps need to be caulked as a moisture barrier. The commission agrees and has revised the standard to provide that gaps between masonry surfaces and adjacent materials must be caulked and less than one-quarter of an inch.

Section 304.15(h), now §304.15(g), provides that mortar shall not obstruct functional openings, such as weep holes, vents and plumbing cleanouts. Foster suggested that the commission delete weep holes from this standard and VBA, Parker, BCSHBA, Lennar and GSABA contend that masons cannot avoid getting mortar in weep holes. However, the purpose of a weep hole is to create a functional opening for the release of moisture; accordingly, the commission has not revised this section.

Section 304.16 provides performance standards for stucco. Subsection (a) allows that a stucco surface shall not be excessively bowed, wavy or uneven. As a result of a comment received from Eberwine the commission has revised the section to read "stucco surfaces" rather than "a stucco surface". Subsection (c) addresses cracks that may appear in a stucco finish. Cracks that do not equal or exceed one-eighth of an inch in width at any point along the crack do not violate the performance standard in subsection (c). Both Eberwine and HADD protested the allowance of any cracks in a stucco surface within the one-year warranty. However, cracking does occur as a result of normal shrinkage and curing; thus, the commission finds that the performance standard as proposed is reasonable. Nonetheless, the commission has deleted the explanatory language in paragraph (2) of subsection (c), because, as with other explanatory notes offered throughout the proposed text of the performance standards, the standard speaks for itself and a defect that fails to meet the performance standard is covered by the applicable warranty.

Eberwine suggested that the commission add the word "visibly" and delete the word "excessively" in the stucco performance standard that prohibits excessive deterioration of stucco. However, the commission finds that the performance standard as proposed adequately expresses the commission’s intent.

Subsection (h) of the performance standards on stucco provides that a gap between stucco joints shall not equal or exceed 1/16 of an inch in width. VBA, GSABA, Parker, Streetman, ADB and BCSHBA all protested the performance standard set at less than 1/16 of an inch, preferring instead that the commission adopt the NAHB standard of 1/8 of an inch. The commission declines to adopt the NAHB standard, which the commission as determined is insufficient for first year warranty expectations. Bonded Builders pointed out that the term "gap" is imprecise when referring to an intentional joint placed to allow for expansion and contraction of the stucco surface. The commission agrees and has revised the section to provide that "separations" at joints must meet the stated standard. The commission made this same correction in subsection (i), which refers to separations between stucco and adjacent materials.

Subsection (j) states that stucco shall not be allowed to obstruct a functional opening, such as a weep hole, a vent or a plumbing cleanout, much like the performance standard for masonry mortar. Eberwine suggested that the commission should add "or other weep hole areas," but the commission does not see that such an addition would be particularly helpful. Eberwine also suggested that the commission add a section providing that "all stucco wall sections shall be constructed so that there is a functional ‘weep area’ at the base of the stucco wall section." The commission is adopting performance standards and not stating construction requirements as are already covered by the IRC or manufacturer installation specifications.

Subsection (k) addresses the minimum screed clearance for stucco. The commission had proposed that the screed have a minimum clearance above soil or landscape surfaces of eight inches and that it have clearance above other surfaces of at least two inches. Eberwine suggested that the clearance over soil should be four inches, as did Henderson. Foster suggested that requiring eight inches of clearance would increase the required elevation of foundations. The commission reviewed the 2000 IRC and the 2003 IRC for stucco and reviewed the 2000 and 2003 IRC for Exterior Installation Finish Systems (EIFS). Although the 2000 IRC stated no clearance standard for stucco, the 2003 requires a minimum clearance of four inches above soil and a minimum of two inches above paved surfaces. For EIFS, the 2000 and 20003 versions require a six inch clearance for paved and unpaved surfaces. Therefore, the commission is revising subsection (k) to require that stucco screed clear soil or landscape materials by four inches and paved surfaces by two inches. Further, the commission is adding a section for EIFS that screed clearance be at least six inches above paved or unpaved surfaces.

Section 304.17 sets out the performance standards for roofs. HADD commented that the section does not include a requirement for attic ventilation. However, attic ventilation is required by the IRC and the performance standards do cover blocked ventilation. Accordingly, the commission declines to make the requested change. This section also contains a specific exclusion for failure of roof performance as a result of extreme weather. HADD protests the inclusion of this exclusion on the basis that it believes the term "extreme weather" is inadequately defined. Poage made a similar comment about use of the term "extreme weather" in this section. The commission has determined that the IRC incorporates applicable construction requirements for weather conditions that can be expected to be the norm in different geographic regions. Builders are required to construct to the IRC specifications applicable to the region in which the home is built. Therefore, again, the commission believes that use of the term "extreme weather" as it has been defined by the commission conveys adequate information for its intended purpose.

In §304.17(h), which refers to damaged roof tiles, the commission included the term "chipped." Parker, VBA and ADB all noted that if a tile is cracked or broken, it is also "chipped" to the degree that structural integrity might be compromised, but that a roof tile may have an insignificant "chip" that neither impairs aesthetics nor functionality. The commission agrees and has revised this subsection accordingly.

Section 304.17(i) provides that objects designed to penetrate a roof placed within a roof valley centerline require "cricketing" or other Code-approved water diversion methods. Eberwine suggested that the commission specify that such objects placed within a twelve-inch distance of a roof valley centerline require Code-approved water diversion methods, but also suggested that the term "cricketing" be removed. The commission finds that the standard is clear as proposed.

Eberwine also commented that roofs should not allow water penetration, regardless of reason, as implied in subsection 304.17(j). The commission concurs and has revised the section as a result of the comment.

Section 304.18 includes performance standards for doors and windows. HADD noted several possible construction defects for doors and windows that it felt were not addressed by §304.18. However, after reviewing the listed items, the commission believes all the possible conditions are covered elsewhere, either in the IRC or in the proposed performance standards.

Throughout the performance standards, and in this section on windows and doors, the term "excessive" is used to describe conditions outside the norm. The term is defined and the commission finds that, as defined, the term adequately explains the commission’s meaning when it has used the term in the performance standards. Tilson suggested that the commission should include a statement as to normal condensation in explanation of the performance standard stated in subsection (a)(2) that closed doors and windows should not allow excessive moisture. The commission has not made a change as a result of the comment because the suggested language does not add meaning to the standard as proposed.

Section 304.18(a)(3) states that window and door glass shall not be broken as a result of construction activities. Similarly §304.18(a)(4) provides that window and door screens shall not be torn or damaged as a result of construction activities. Bothell expressed concern that if such a defect was not noted when the home was transferred from the builder to the buyer, the buyer may claim that damage caused by the homeowner should be repair by the builder. HADD expressed concern that glass may crack due to stress and that the use of the phrase "due to construction activities" might preclude an appropriate repair. As discussed above, "construction activities" are those actions taken by or at the direction of the builder or its employees, agents or subcontractors. The commission believes this phrase as it is used in this section and other proposed performance standards provides adequate coverage for the builder from unscrupulous homeowners and for the homeowner for defects resulting from the builder’s actions.

Section 304.18(a)(6) assures that door and window locks and latches shall close securely and shall not be loose or rattle. Although Eberwine suggested different language for this performance standard, the commission finds that its proposed text offers the same standard that doors, windows and their hardware shall close securely and shall not be loose or rattle.

In the remainder of §304.18(a), the commission received comments on proposed explanatory language and maintenance suggestions. The commission has deleted these subsections for the reasons stated earlier on similar proposed sections.

Subsection (b) of 304.18 addresses performance standards for windows. HADD offered a list of possible defects that the commission could add. The commission believes that all of the situations described are covered by currently proposed sections.

Subsection (c) of 304.18 provides performance standards for doors of various types. Section 304.18(c)(1) states that sliding doors and door screens shall stay on track. VBA, GSABA , BCSHBA and Parker all suggested that the performance standard would be better stated if it made clear that the performance expectation is for sliding doors and screens in normal use. However, all of the standards presume conditions of normal residential use.

With regard to the clearing of the bottom of an interior door and the floor, as set forth in §304.18(c)(2), VBA, GSABA and Parker suggested that the commission refer to the original floor covering as opposed to the floor. The commission agrees that if a party adds a new floor covering after the builder has installed flooring, the resulting decrease in space may not be adequate and may create a situation in which the space between the door and the floor no longer meet the performance standard. Accordingly, the commission has revised the subsection as suggested. Eberwine offered that the commission should add the requirement that the space should meet the measurement standards or "as required to maintain proper air flow…" However, the suggested language would add an unacceptable element of uncertainty and subjectivity into an objective standard that the commission declines to adopt.

Section 304.18(d) sets forth performance standards for garage doors. Tilson and Stark both sought clarification for §304.18(d)(2) to be assured that the standard as written could not be read to require the installation of garage door openers. The commission’s intent was to state a standard for operability if a garage door with opener is installed. Therefore, the commission has revised the section to clarify that intent.

The commission has also reduced the allowance for a gap around a garage door from 3/4 of an inch to one-half of an inch to address consumer concerns voiced in comments received.

For §304.18(d)(5), Eberwine suggested that the commission add language regarding the operation of the garage door, including that the door shall remain in place at any open position and that the door shall operate smoothly and without interruption. The commission finds that the suggested changes will improve the standard, so has revised the sections accordingly.

Section 304.19 lays out the performance standards for interior flooring other than finished concrete floors, which are addressed in §304.19(c) of this section. Stark offered improved language for the performance standard stated in §304.19(b) regarding carpet. The commission agrees that the suggested language that carpet "lay flat and be securely fastened" not only improves subsection (b)(1) but eliminates the need for (b)(2) and (b)(3). The commission made those changes and thereby addressed issues raised by others regarding subsection (b)(2).

Section 304.19(c)(1) states that finished slabs that are located in living spaces that are not otherwise designed for drainage shall not have pits, depressions or unevenness that equals or exceeds 3/8 of an inch in any 32 inch measurement. Although several builder representatives raised the question of an exception for specialty features that may incorporate pits or depressions, the commission finds that the exclusion contained in subchapter A for specialty features addresses the issue of intentionally incorporated pits, depression or unevenness.

Section 304.19(c)(2) provides that finished concrete floors in living spaces shall not have cracks or separations equal to or in excess of 1/8 of an inch in width or 1/16 of an inch in vertical displacement. Tilson suggested that the 1/16 of an inch standard for vertical displacement should be changed to 1/8 of an inch to match the standard for concrete slabs in living spaces that are not the finished floor surface. The commission disagrees because concrete slabs that are covered by another floor covering can have a greater allowance because of the buffer of the floor covering. Eberwine and HADD both expressed concern that the 1/8 of an inch width for cracks or separations is too great. However, the commission finds that the standard is reasonable for the properties inherent in concrete.

Section 304.19(d) sets forth the performance standards for wood flooring. Several commenters noted that the proposed standard for humps and ridges in finished wood flooring does not correspond with the standard for subflooring. Many also pointed out that distressed wood floors are currently in vogue and often do not meet this standard as a specialty feature. All suggested that the standards should be the same. The commission concurs and has changed the text to provide that wood floors should not have unevenness, humps or depressions that equal or exceed a measurement of 3/8 of an inch in any 32-inch direction within any room.

In §304.19(d)(3), the stated performance standard is that wood flooring shall not have open joints or separations that exceed 1/8 of an inch. Eberwine and HADD have suggested that 1/16 of an inch is a more appropriate standard. However, the commission has determined that due to the properties of wood flooring when exposed to varying degrees of humidity, 1/8 of an inch is a better standard.

Section 304.19(d)(3)(B) on wood flooring also provides an exclusion from the performance standard for non-hardwood species that contain greater moisture and may shrink after installation and structural wood flooring that has been designed to serve as the finished floor. The standard contains a caveat that the builder must inform the homebuyer of the peculiar characteristics of this type flooring. Eberwine suggested that the caveat also include that the builder must provide the homeowner this information prior to contract signing. The commission agrees that this is a good addition to the proposed text.

Section 304.19(e) states the performance standards for vinyl flooring. Paragraph (1) provides that vinyl flooring must be installed square to the most visible wall and shall not vary by 1/8 of an inch or more in any six-foot run. VBA, Parker, Lennar and Stark all recommend that the measurement should be a 1/4 of an inch in a 32-inch horizontal measurement because the allowance for a bow in the wall is 1/4 inch in any 32 inch horizontal measurement. Since the vinyl flooring is likely to be measured from the wall, those commenting suggest that the standard should be the same. Miller states that the industry standard for installation is that the flooring is to be square with the longest wall. Tilson and Streetman both recommended that the measurement should be greater than 1/4 of an inch in a six foot run, 3/8 and 1/2 of an inch respectively. The commission agrees that the wall bow standard will affect the measurement for the vinyl flooring, so it has revised the standard to comport with the wall bow standard. However, the commission believes that it is more aesthetically pleasing to square the flooring with the most visible wall and not the longest.

With regard to pattern alignment in vinyl flooring, the commission standard is that the pattern shall be aligned in an amount less than 1/8 of an inch. Eberwine suggested that the standard should be 1/16 of an inch, but the commission has determined that the 1/8 standard is more reasonable.

The commission has also determined that vinyl flooring shall not have depressions equal to exceeding one-half of an inch in any six-foot run. Although several commented that the vinyl flooring standards should be the same as the concrete slab standard for the depth of depressions, the commission does not agree. Subfloors of concrete can accept a leveling compound prior to the floor covering that will reduce the degree of depressions in the surface. For that reason, the commission declines to accept the suggestions of VBA, Parker or Stark regarding §304.19(e)(4).

Finally, with regard to vinyl flooring, §304.19(e)(10) provides that a seam in vinyl flooring shall not have a separation that equals or exceeds 1/16 of an inch in width. It further provides that where dissimilar materials abut vinyl flooring, the gap shall not equal or exceed 1/8 of an inch. Eberwine asserts that there should be no separation at seams in vinyl flooring and that gaps adjacent to dissimilar materials should be 1/16 of an inch. The commission disagrees because the suggested installation standards would have an impact on affordable housing unequal to the benefit.

Section 304.20 contains the performance standards for hard surfaces, including ceramic tile, flagstone, marble, granite, slate, quarry tile, finished concrete or other had surface materials. Subsection (a) discusses the performance standards for these materials generally, regardless of their application. Paragraph (1) of subsection (a) provides that construction activities shall not create cracked or broken hard surfaces. Eberwine suggests that the commission add language specifically addressing the instance of poor surface preparation, but the commission does not agree with the suggestion. Although poor substrate preparation may be a factor that causes broken or cracked hard surfaces, it is not the only cause of such a construction defect.

Subsection (a)(6) of §304.20 address the displacement at a joint between two adjacent hard surfaces and sets the performance standard at not greater than 1/16 of an inch. GSABA, Lennar and BCSHBA expressed concern that trim pieces adjacent to hard surfaces would vary greater than 1/16 of an inch. The commission agrees and adopts the revised language offered.

Subsection (a)(8) provides that hard surface countertops must be level to within 1/4 of an inch in any six-foot run. Although Tilson asserted that the standard was too stringent, the commission finds that it is readily achievable.

Section 304.20(c) has the performance standards specifically for concrete countertops. Paragraph (1) states the standard for pits and depressions that shall not equal or exceed 1/8 of an inch in any 32-inch measurement. Paragraph (2) states that such countertops shall not have cracks or separations equal or exceeding 1/16 of an inch in width or 1/64 of an inch in vertical displacement. Tilson commented that the standards should allow depression of up to 1/4 of an inch and cracks of 1/8 of an inch and displacement of 1/16 of an inch. HADD conversely suggested that concrete countertops should have no cracks. The commission’s proposed standard acknowledges that concrete is subject to minor cracking, but it also recognizes that concrete countertops as easily poured and leveled. Therefore, the commission has not revised the standard as a result of the comments received.

Tilson pointed out that there is no need for §304.20(c)(6) regarding the levelness of a concrete countertop because the issue is covered by §304.20(a)(8), which expresses the same standard for hard surfaces, including finished concrete. The point is well-taken and the commission has deleted the duplicative section.

Section 304.21, which addresses performance standards for painting, staining and wall coverings has been revised to reflect comments already discussed, such as the definition of the term "excessive," use of the term "normal light" in lieu of "natural light" and the deletion of unnecessary explanatory comments. Furthermore the standards stated in §304.21 reflect the limited period of the warranty for paint, stain and wall coverings but also reflect the reality that exposure to elements at varying rates can affect the performance of these materials. Therefore, although the commission received stakeholder comments on paint, varnish and wall coverings as proposed in §§304.21(a), 304.21(b) and 304.21(c), none of the comments raised issues or resulted in a change to the proposed text other than the issues and revisions previously discussed.

Section 304.22 states the performance standards for plumbing that are within the one-year workmanship and materials warranty period. HADD listed a number of issues that it felt needed to be covered in this section; however, all of those items listed are either construction issues covered by adherence to IRC and other plumbing standards or are covered elsewhere in this chapter. Subsection (a)(1) states that plumbing fixtures shall not have chips, cracks, dents or scratches due to construction activities. Although Tilson recommended adding a proviso that such blemishes were acceptable if not visible from three feet away in normal lighting conditions, the commission disagrees. Assuming that new appliances and fixtures are installed in accordance with §304.2(a)(5)(A), a homebuyer’s reasonable expectation is that the product will not be marred as a result of the builder’s actions.

Several of the performance standards in §304.22(a) include exclusionary provisions for tarnished or damaged plumbing fixture finishes that have been marred by factors beyond the builder’s control, such as the use of corrosive cleaning methods or the chemical content of the water supply. Eberwine suggested that the commission require the builder to test the compatibility of products installed with the water that comes into the home. The commission finds that such a requirement is not reasonable and would place an undue burden on the builder.

Plumbing fixtures with stoppers shall operate properly and retain water, per §304.22(a)(6). VBA, GSABA and Parker commented that pop-up stoppers are not designed to retain water indefinitely and that seepage occurs; therefore, these stakeholders suggested inclusion of the caveat that such stoppers shall operate as to meet manufacturer’s specifications. The commission agrees that the suggested language adds clarity to the standard.

Subsection 304.22(a)(9) states that tubs and shower pans shall not crack. Eberwine offered that a shower "pan" is different from a shower "base." He offered new language but only that the remedy of repair, which is proposed to be replacement of the failed part, be replacement of the tub or shower. The commission finds that the change would not be consistent with the stated remedy of repair in other sections and declines to make the revision offered.

Section 304.22(b) sets forth one-year performance standards for plumbing pipes and vents. Although Eberwine submitted suggested language revisions, his offerings did not improve the sections addressed.

Sections 304.23 and 304.24 provide the one-year performance standards for heating, cooling and ventilation parts and electrical systems and fixtures that are not a part of the delivery systems covered under subchapter C. Throughout these two sections the commission only received comments on issues already discussed, such as the definition of the term "excessive," use of the terms "construction activities" and "normal light" and the deletion of unnecessary explanatory comments. The commission has revised the language in accordance with its findings on those comments as previously explained. The commission also received comments similar to others discussed before suggesting the addition of language that reiterates performance in accordance with manufacturer’s specifications, which the commission has declined to include for the reasons discussed earlier.

Section 304.25 sets out the performance standards expected for interior trim work. Comments and revisions not already addressed include the suggestions by VBA, Parker and BCSHBA that subsection (b) regarding performance standards for shelving should be revised. The proposed text states that the length of a closet rod shall not be shorter than the actual length between the end supports in an amount equal to or exceeding 1/4 of an inch. Those who provided comments suggested that the standards should provide that the closet rod should extend at least two-thirds into the support bracket at each end. The commenters felt that this would offer assured support for a load bearing rod. However, the commission has determined that the suggested language does not provide the same objectivity for compliance with the standard; therefore, it has not revised this section as a result of these comments.

The commission deleted proposed §304.25(a)(5) related to interior trim in a closet to address consumer concerns regarding aesthetics. Section 304.25(a)(4) now addresses all trim, regardless of its placement in a closet.

Section 304.26 states standards for mirrors, interior glass, and shower doors. TAB and Little commented that a shower door is not water tight; and therefore, the performance standard in §304.26(c), that a shower door shall not leak, could not be achieved if the homeowner sprayed water directly at the door. The commission finds that under normal use, the performance standard is achievable.

Section 304.27 regarding performance standards for hardware and iron work has been revised to delete maintenance suggestions that the commission will address in separate guidelines for homeowners. In addition, the commission received comments from Parker and VBA that the performance standard that interior ironwork will not rust should be modified to add "unless the finish is installed as a design feature." The commission feels that this issue is already covered by the exclusion in subchapter A for specialty features. Therefore, the commission has not adopted the suggested language.

Section 304.28 sets out performance standards for countertops and backsplashes. For countertops generally, the performance standard for levelness is that a countertop must be level to within 1/4 of an inch in a six-foot run. Tilson asserted that the standard was too difficult to achieve because of the cumulative variations for levelness in foundations, cabinetry and countertops. However, the commission has determined that the standard is reasonable and achievable without undue added expense for construction.

Tilson made the same comment for the performance standard requiring that countertops not bow or warp in an amount equal to or exceeding 1/16 of an inch per linear foot. For that standard, Tilson suggested that the better measurement is 1/8 of an inch per linear foot. Again, the commission has determined that the proposed standard is both reasonable and achievable without unreasonably increasing the cost of construction.

The performance standards for fireplaces are included in §304.29. GSABA suggested that in the subsection that requires that a fireplace draw properly, the commission should add "when operated in accordance with manufacturer’s specifications." For manufactured products, warranty provisions generally require that those products be operated in accordance with specification in order to receive the benefit of the warranty. Therefore, the commission has determined that the suggested language is not necessary to clarify the standard. In addition to the deletion of explanatory language within the standards for fireplaces, the commission has revised this section as a result of a comment received from Eberwine.

Eberwine noted that the standard allowance for a chimney to separate from the main structure in an amount less than one-half inch in a ten foot vertical measurement may create a situation in which a chimney is separated from the main structure up to one and a half inches in a thirty foot home. Eberwine expressed concern that this would create an issue of structural integrity. The commission has determined that since this standard is about external chimneys, and the gaps between adjacent materials are addressed elsewhere in the standards, this section is unnecessary. Accordingly, the commission has deleted it.

Section 304.30 provides performance standards for irrigation systems. GSABA suggested that these standards should not be adopted. The commission has determined that if an irrigation system is installed, the proposed standards are reasonable performance standards that do not add significantly, if at all, to the cost of construction. The commission did revise the standard to make clear that it is not requiring that irrigation systems be installed, but that the standards apply if an irrigation system is installed by the builder. GSABA also suggested that subsection (b), which addresses water spray from a properly installed irrigation system, should be revised to state that water coverage must be "substantially" complete and that water must not spray "excessively" on unintended areas. GSABA stated that there is no way to keep water spray from unintended areas. The commission disagrees. Sprinkler heads must be positioned such that areas that will be damaged by water are not sprayed when the system is in operation.

Section 304.31 states performance standards for fencing. Subsection (a) as proposed provides that fences shall not lean in excess of 7.5% out of vertical. However, Lennar and Stark both suggested different measurements out of concern that the proposed standard allows excessive leaning. The commission revised the standard to provide that a fence shall not lean more than two inches out of plumb due to construction activities.

Performance standards for yard grading are covered in §304.32. Although the proposed standard references the IRC, both Stark and Lennar commented that the IRC is not particularly instructive on the topic. Lennar suggested that reference to the HUD standards might be preferable because those standards offer more direction. Proper drainage is an important feature that affects foundation stability. Therefore, the commission has determined that it is better to direct builders to use grading and drainage standards either as promulgated in the IRC or other governmental regulations. In paragraph (a)(2) of this section, Eberwine suggested that it is better to require the homeowner to "maintain" the drainage pattern as opposed to "preserving" it. The commission accepted the suggestion.

In §304.33, the commission has provided performance standards for pest control. The standard provides that eave returns, truss blocks and other attic and roof vent openings shall not permit rodents, vermin, birds and other similar pests into the home or attic space. GSABA stated that including eave returns would conflict with the IRC, but the commission could not find that conflict. Little and TAB pointed out that there is no opening small enough to keep ants, roaches and other "vermin" out. Therefore, the commission removed the term "vermin." Eberwine offered a grammatical correction, which the commission has incorporated.

Subchapter C provides the performance standards for plumbing, electrical, heating and air-conditioning delivery systems subject to a minimum warranty period of two years.

Parish submitted written comments regarding §304.50(a). He suggested that the section should state that a builder is not responsible for the energy provider’s (power company’s) inadequate lines or transformer voltage spikes or surges that could cause lights to dim or light bulbs to blow out. The commission agrees with the substance of the comment but feels that the issue is adequately covered.

Tilson commented on §304.50(d)(3) and suggested that this paragraph be removed completely. The commission agrees that the proper placement of this paragraph is within subchapter B and has moved it accordingly.

Section 304.51 sets forth the standards for plumbing delivery systems. Tilson suggested that §304.51(a)(1)(A) should be deleted because the builder should be responsible for installation in accordance with the Code and if a water pipe freezes, it should not be the builder’s responsibility. TAB commented that this paragraph should be revised to include "that was not installed in accordance with the applicable code" after "If a water pipe…". The commission agrees that temperature and outside/inside weather is largely outside of the builder’s control. However, the builder is responsible for installing and insulating water pipes in accordance with the Code, so the additional language is not necessary. If a pipe is not installed and insulated in accordance with the Code, it is considered a construction defect.

Subsection 304.51(a)(4) provides that water pressure shall not exceed 80 pounds per square inch in any part of the water supply system located inside the home. The IRC provides that minimum static pressure at the building entrance for either a public or private water supply system is 40 pounds per square inch, which is repeated in the standard. The proposed performance standard also provides that if the water supply system does not deliver water to the building at the required minimum static pressure, the builder is not responsible for water pressure variations originating from the water supply source. However, Poage asserted that §304.51(a)(4)(A) should require a builder to provide a regulator to regulate overpressure from the water supply source. The commission does not agree. The installation of a water pressure regulator after the entrance of the water into the house is not a necessity in most instances. Therefore, addition of a regulator may only become a necessity if the water pressure exceeds 80 pounds per square inch as per the standard. The proposed standard also stated that if water pressure within the home is excessively high or low, the builder is required to take action to bring the variance within the standard. Tilson commented that this paragraph should be completely rephrased to clarify that the builder is not responsible for low water pressure entering a home from the water supply. The commission agrees that the builder is not responsible for water pressure that does not meet the minimum static pressure when entering the home from the supply source. Accordingly, this paragraph has been modified to remove the term "low".

Section 304.52 covers the performance standards for heating, air-conditioning and ventilation systems. Although Poage commented that a reference to the Code and manufacturer’s specifications should be included in §304.52, the requirement that construction meet Code specifications and that manufacturer’s specifications be met for installation of manufactured consumer products are covered in subchapter A. HADD commented that §304.52(b)(1) should be revised to replace 68 degrees with 72 degrees because 68 degrees is too low. The commission disagrees because the temperature stated in the standard is consistent with the ASHRAE guidelines. HADD also commented that the 4-degree temperature range proposed in §304.52(b)(1)(C) is too wide a variance. The commission agrees that without modification the standard is not clear. Accordingly, the commission has modified the subsection, which is now found at §304.52(b)(1)(B) to provide that the temperatures may vary up to 4-degrees Fahrenheit between rooms, so long as the temperatures meet the standard stated in §304.52(b)(1).

Subsection 304.52(b)(2) provides that an air-conditioning system shall produce an inside temperature of at most 78-degrees Fahrenheit under the local outdoor summer design conditions as specified in the Code. HADD complains that 78 degrees Fahrenheit is too high. However, the proposed standard meets the ASHRAE standards; therefore, the commission has not modified the subsection as a result of the comment. Foster commented that the tolerance of a 4-degree variance between rooms is too broad in §304.52(b)(2)(C). The commission declines modification because the 4-degree variance is consistent with the ASHRAE guidelines. However, like the standard above in subsection 304.52(b)(1)(B), the commission has added the caveat that the temperature shall not vary between rooms greater than the standard set forth in §304.52(b)(2). The commission also added this caveat to §304.52(b)(3). Larkins suggested that the commission use the Air Conditioning Contractors Association guidelines for performance standards on cooling issues and measurements. The commission has determined that the ASHRAE standards are more appropriate for statewide performance standards. Larkins also commented that the 4-degree variance between rooms is vague. However, the commission finds that the modification it has made as a result of comments discussed above addresses this issue. Henderson commented that §304.52(d)(3) should be revised to delete the phrase "the percentage permitted by ANSI/ASHRAE Standard." Henderson notes that the IRC provides a sufficient objective standard regarding sealing of ductwork and the loss factors for forced-air distribution systems. The commission agrees that the deletion will provide further clarity to the section and has deleted the reference to the ANSI/ASRAE standards and has added the objective standard that ductwork shall not leak in excess of the standards set by Code.

Subchapter D states the performance standards for foundations and other structural components of a home. Harwell commented that "Foundations and" should be deleted from the title of the subsection due to redundancy. The commission agrees and the title has been modified accordingly.

Poage commented that the builder should be required to provide the homeowner with a grid showing the foundation and/or floor elevations of the residence taken when the residence is substantially complete. The commission has fully addressed this issue by the definition of "original construction" in subchapter A and that definition has been incorporated into this subchapter.

Grissom commented that subchapter D should be modified so that the State of Texas does not specify prescriptive performance standards but instead defers to a competent group of professional engineers active in the profession to provide such details. The commission has determined that construction defects in slab foundations should be evaluated using the guidelines promulgated by the Texas Section of the American Society of Civil Engineers (2002) (ASCE Guidelines) to permit an evaluation based on an objective standard, which is in keeping with the legislative intent of the Act. Grissom asserts that limiting tilt to ".05 degrees" in any direction is too restrictive and a deflection ratio of L/360 is too loose. However, the commission finds that the measurements it has put forth are consistent with the prevailing engineering consensus on performance standards for slab foundations. Houston made a similar comment but he also referred to design standards used by engineers. The commission’s intent is to develop objective performance standards used for evaluation of foundation performance post-construction, not to address design standards that should be followed pre-construction. Accordingly, the commission has not made changes as a result of Grissom’s or Houston’s comments.

TAB expressed concern that the remedy as stated in each subsection of §304.100 in which the commission has stated that if a lack of compliance with a stated standard exists, the builder shall take such action as is necessary to bring the variance into compliance with the standard-or similar words-is too vague as to what is expected on the part of the builder. For the sake of clarity, TAB has suggested that the language be modified to require the builder to pursue the appropriate remedial measure as described in Section 7 of the ASCE Guidelines. Bonded Builders provided the same comment. The commission agrees that the suggested revision will provide better guidance and has adopted TAB’s suggestion and a similar suggestion made by Pierry.

Subsection (a) of §304.100 states that slab foundations should be evaluated using the guidelines promulgated by the Texas Section of the American Society of Civil Engineers (2002) (ASCE Guidelines). Harwell commented that this paragraph should be rephrased so that the format would be more consistent with the structural standards. Bonded Builders and Pierry offered similar comments. The commission agrees and has modified the paragraph as suggested by Harwell.

HADD commented that there was no need for the commission to add extra definitions or other criteria to the ASCE Guidelines. The commission used the ASCE Guidelines to create an objective standard for evaluating slab foundation performance. The commission’s additional criteria provide information for the third-party inspector who must evaluate a claim of a defective foundation.

Harwell offered that the stated standard for deflection should reference the definition of deflection in the ASCE Guidelines. GSABA also offered a definition for "deflection." However, the commission finds that "deflection" is a term of art that needs no further definition and the suggested additional language does not add clarity to the proposed text.

TAB commented that §304.100(a)(1)(A) should be revised to tie together the symptoms of distress found in Section 5 of the ASCE Guidelines with the building and performance standards set forth by the commission in subchapters B and C. TAB believes that the change is necessary because, in the absence of this link between the two standards, there may be a finding of a violation of this standard without real evidence of a structural problem in a home. The commission disagrees with TAB’s suggested reference to the performance standards in subchapters B and C because this paragraph is to be used in evaluating performance of foundations, which is not determined by workmanship and materials performance.

Eberwine also commented on §304.100(a)(1)(A), suggesting that the reference to L/360 should be supplemented with "or the equivalent of this degree of deflection." He based his suggestion on concern that the proposed language fails to consider a home that is constructed with materials or components that are damaged or otherwise compromised by slab deflection that does not exceed the limits of deflection. Pierry suggested language that also addressed the situation Eberwine describes. The commission has modified the paragraph to comport with Pierry’s suggested language.

In §304.100(a)(1)(A) the commission had proposed that a construction defect would exist if deflection exceeded L/360 and there existed a combination of two or more associated symptoms of distress. The commission has revised the standard such that deflection exceeding L/360 accompanied by more than one symptom of distress would be evidence of a construction defect. This change addresses HADD’s comment on the number of symptoms of distress. Little also commented that the paragraph should be revised for better clarity; however, Little’s suggested language was not accepted because the commission has modified the paragraph as addressed above.

Harwell recommended changes to §304.100(a)(1)(B) to add clarity that are the same changes he suggested for revising the definition of "original construction" such that evaluations will be based on elevations taken at an approximate rate of at least one elevation per 100 square feet, subject to obstructions. The commission adopted the modifications in the definition of "original construction" and has incorporated them again in this section. Stark pointed out that word "and" should be deleted from the end of the sentence in this subpart of paragraph (1) because that terminology would require that all three conditions identified in paragraph (1) exist. Based on other modifications to this section and the commission’s determination that §304.100(a)(1)(B) as proposed did not state a performance standard, the commission has deleted the proposed section.

Section 304.100(a)(1)(C) as proposed provided that a slab foundation shall not exhibit tilt greater than a one-half of one percent change from the original construction elevations that result in actual observable physical damage to the components of the home identifiable in subchapters B and C. Harwell suggested that the language be changed such that "the slab shall not move after construction in a tilting mode in excess of one percent from the original elevations resulting in actual observable physical damage to the components of the home identifiable in subchapter B and subchapter C of this chapter." GSABA, Bonded Builders, TAB and Little made similar comments. Stark commented that in a pure tilt situation, actual physical damage to a home may not be observed even if a slab tilted beyond reasonable expectations that affect usage of the home. Eberwine offered a comment similar to Stark’s. Houston expressed concern that one-half of one percent tilt is too liberal a standard under current achievable performance standards with regard to fill settlement. The commission has determined that Harwell’s suggested language regarding the one percent tilt from the original construction elevations best expresses the appropriate standard regarding movement. Other recommended changes, that there be no requirement of actual physical damage to the home as a result of tilt and that the physical damage must rise to the level of violating the performance standards in subchapters B and C, are rejected. One percent tilt from the original construction elevations, considering the revisions to the definition of that term, is sufficient to protect a homeowner from a house that is tilted to the degree that it would affect functionality of the home. In addition, subchapter D provided performance standards for the foundation and performance of the structural components is not dependent upon a defect in workmanship and materials. Also, the commission has deleted the references to subchapters B and C in this paragraph for the reasons stated previously.

The subsection on slab foundations also provides that if measurements and associated symptoms of distress show that a slab foundation does not meet the deflection and tilt standards stated, the builder is required to bring the slab into compliance. As discussed previously, the language regarding the remedy has been revised for clarity. Still others commented that use of the connector "and" would require a slab to exhibit both deflection and tilt in order to be defective. The commission has changed the "and" to an "or" to reflect its intent. Eberwine commented that "and associated symptoms of distress" should be deleted because the builder can simply repair the "symptoms" and comply with the standard. The commission believes that the modifications resulting from TAB’s suggested changes to the remedy will address this issue. Harwell suggested that the commission should reference remedial measures contained in the parties’ warranty agreement, if any. However, if parties have an agreement with terms that provide greater protection than the commission’s adopted provisions for limited warranty and performance standards, the Act provides that the agreement will supersede the adopted provisions. HADD commented that there is no requirement to record the original tilt or original deflection, which the commission discussed earlier in subchapter A regarding the definition of "original construction elevations". Although there is no requirement that original construction elevations be recorded, if the builder does not have original construction elevations available then a home is presumed level + or - 0.75 of an inch over the length of the foundation thereby creating a reasonable base line for evaluation. Therefore, no additional revision is warranted as a result of HADD’s comment.

Subsection (b) lays out the performance standards for floor over pier and beam foundations. Houston again commented that floor deflection tolerance of L/360 is unacceptable. The commission declines revision for reasons expressed above. Harwell offered similar revisions to this performance standard as he offered for slab foundations. The commission has modified the section to incorporate those modifications it adopted previously for purposes of consistency. GSABA’s suggestion that the phrase "provided the conditions are not the result of homeowner’s actions as described in subchapters A, B or C" be added is rejected because the issue has been taken care of by the adoption of language suggested by TAB and Pierry regarding remedial measures. Eberwine commented that "the equivalent of" be added before L/360. Again, revisions already adopted by the commission address the situation raised by Eberwine’s suggestion.

Regarding floor over pier and beam foundations, Pierry commented regarding §304.100(b)(1)(B) that the word "move" should be replaced with "deflect" and the paragraph be rephrased for clarity. The commission agrees and has modified the paragraph in accordance with the suggestion.

Pierry also commented on §304.100(b)(2)(B) regarding load bearing components of a home. He made a suggested change to the remedy language that the phrase "repair, reinforce or replace such load bearing component to restore the structural integrity of the home or the performance of the affected structural system" should be added. The commission agrees and has modified the section accordingly. The commission has also revised the language regarding the appropriate remedy of repair in other paragraphs as suggested by Pierry.

HADD commented that the phrase "home resulting in actual observable physical damage to the home identifiable in Subchapter B and Subchapter C of this chapter" should be deleted. The commission has agreed here and elsewhere in subchapter D and has made the suggested deletion.

Eberwine commented that in §§304.100(b)(3)(A) and 304.100(b)(3)(B) a builder can simply repair only the "actual observable physical damage." The commission has addressed this comment as discussed above. Eberwine also commented that §304.100(b)(3)(A) does not address circumstances of deflection while a home is under construction. The commission’s jurisdiction arises after the warranty has become effective, which is generally post-construction. If a home has actual observable physical damage prior to purchase, the buyer may or may not make the decision to accept the home as built.

Comments were received about §304.100(b)(4), damage to structural components. Eberwine suggested adding the phrase "or if the structural component is modified or otherwise damaged in excess of, or in violation of, the manufacturer’s specifications to paragraph (B)". The commission has not made a modification as a result of this comment because the performance standards provide for installation in accordance with manufacturer’s specifications. Harwell suggested that the performance standard require a damaged structural component to "materially" compromise the structural integrity or performance of the system. The commission has not adopted this language because use of the term "materially" interjects a level of subjectivity that the commission wishes to avoid.

Pierry commented that §304.100(b)(4)(B) should be revised to include the phrase "repair, reinforce or replace such load bearing component to restore the structural integrity of the home or the performance of the affected structural system". For reasons addressed above, the commission has revised the remedy language in this section and others.

As proposed §304.100(c)(5)(A) provides that structural component must not separate from a supporting member in excess of 3/4 of an inch or such that it compromises the structural integrity or performance of the system. Houston commented that a structural component should not separate from a supporting member in excess of 3/4 of an inch regardless of whether it compromises the structural integrity of the system. Pierry commented that this paragraph should be revised to replace "in excess of" with "more than". The commission agrees with the suggested change and made it in both subparts A and B.

TAB commented on §304.100(b)(5)(B) and suggested that the second "is" be deleted for readability. The commission agrees and has revised accordingly. Pierry offered the same language changes regarding remedies as before that the commission has addressed and incorporated into revisions.

Regarding §§304.100(b)(6)(A) and 304.100(b)(6)(B) Harwell asserted again that the performance standard should require a "material" compromise of the structural integrity of a system. The commission declines to make this change for the reason given above.

HADD suggested that the subchapter D does not address certain conditions it described as hot foundations, inadequate drainage, damage caused by foundation failure, wet foundations, foundation chipping, a foundation not built according to specifications, post tension foundation failures and organic material under foundation. The commission has determined that all of the defects HADD has mentioned are covered in chapter 304. HADD uses the term "consequential damages," which are not within the purview of the Act. Therefore, the commission did not include the issue in this chapter. However, in subchapter A the commission has addressed the builder’s responsibility to repair any damage to components of the home caused by a construction defect.

Some general comments were received that did not reference a particular section. BCSHBA and VBA commented that the performance standards are stringent and may impact the costs of home building. The commission considered issues of increased construction costs when developing the proposed standards. Costs of home building may increase somewhat for those builders that do not currently build to the performance standards adopted. However, the commission has determined that the performance standards promulgated balance the potential for increased costs with the need for the building of affordable homes in Texas. Other general comments received were considered in adopting this chapter if the subject matter of the comment was within the jurisdiction of the commission and the purview of this chapter on limited warranties and building and performance standards.

Vint commented that "mold prevention" products are available to eliminate mold growth within energy efficient walls and other water sensitive areas of a home. Vint recommended use of a particular product; however, the commission does not endorse particular commercial products for use in home construction or maintenance. The commission has left flexibility in the statements regarding the builder’s responsibilities to repair to provide opportunities for builders and inspectors to use their professional judgment in determining an acceptable method of repair when a construction defect is observed.

No-Burn commented that there are non-toxic fire retardants that have no harmful side effects to humans or pets and no adverse effect on wood. Again, the commission does not endorse any particular commercial products or upgraded material for use in home construction.

Subchapter A. GENERAL PROVISIONS

10 TAC §§304.1 - 304.3

Cross Reference to Statutes: Title 16, Property Code ch. 426 and §§408.001 and 430.001

No other statutes, articles, or codes are affected by the adoption.

§304.1.General Provisions.

(a) Scope. This chapter describes the minimum standards of performance for the various elements or components of a home as described.  Third-party inspectors appointed pursuant to §313.11 of this title will make recommendations for repair or replacement of those elements or components of a home that do not meet these standards during the applicable warranty period based upon the expected level of performance described in these standards for residential construction to which the standards apply. If an element or component of a home is not described particularly in this chapter, the element or component shall be constructed in accordance with any written agreement or, if there is no agreement, in accordance with usual and customary residential construction practices and the element or component shall perform for the purpose for which it is intended for the period of the applicable warranty. All home construction shall comply with applicable Codes.

(b) Effective Date. The provisions of this chapter shall apply to all applicable residential construction projects that must be registered with the commission pursuant to chapter 303, subchapter B, of this title if the construction commences on or after June 1, 2005. Construction commences on the earlier of the date that the parties enter into an agreement for a transaction governed by the Act or the date that work commences.

(c) Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Adverse effect--A tangible condition that substantially impairs the functionality of the habitable areas of the home.

(2) Builder Responsibility--A statement of the corrective action required by the builder to repair the construction defect and any other damage resulting from making the required repair. Parties may agree to an alternative remedy.

(3) Code--The International Residential Code or, if the context requires, the National Electrical Code.

(4) Electrical Standard--a standard contained in the version of the National Electrical Code (NEC), as follows:

(A) for residential construction located in a municipality or the extraterritorial jurisdiction of a municipality, the version of the NEC applicable to electrical aspects of residential construction in the municipality under Local Government Code §214.214 and which is effective on the date of commencement of construction of the home;

(B) for residential construction located in an unincorporated area not in the extraterritorial jurisdiction of a municipality, the version of the NEC applicable to electrical aspects of residential construction in the municipality that is the county seat of the county in which the construction is located and which is effective on the date of commencement of construction of the home; and

(C) for residential construction located in an unincorporated area in a county that does not contain an incorporated area, the version of the NEC that existed on May 1, 2001.

(5) Excessive or excessively--a quantity, amount or degree that exceeds that which is normal, usual or reasonable under the circumstance.

(6) Exclusion- items, conditions or situations not warranted or not covered by a performance standard.

(7) Extreme Weather Condition(s)--weather conditions in excess of or outside of the scope of the design criteria stated or assumed for the circumstance or locale in the Code.

(8) The International Residential Code (IRC)--substantial compliance with the non-electrical standards contained in the version of the IRC for One- and Two-Family Dwellings published by the International Code Council (ICC) as follows:

(A) for residential construction located in a municipality or the extraterritorial jurisdiction of a municipality, the version of the IRC applicable to non-electrical aspects of residential construction in the municipality under Local Government Code §214.212 and which is effective on the date of commencement of construction of the home;

(B) for residential construction located in an unincorporated area not in the extraterritorial jurisdiction of a municipality, the version of the IRC applicable to non-electrical aspects of residential construction in the municipality that is the county seat of the county in which the construction is located and which is effective on the date of commencement of construction of the home; and

(C) for residential construction located in an unincorporated area in a county that does not contain an incorporated area, the version of the IRC that existed on May 1, 2001.

(9) Habitable Area--a living space as defined in §301.1(14) of this title.

(10) Homeowner Responsibility--an action required by the homeowner for proper maintenance or care of the home or the element or component of the home concerned. A homeowner’s failure to substantially comply with a stated homeowner responsibility creates an exclusion to the warranty for the performance standard.

(11) Major Structural Components--the load-bearing portions of the following elements of a home:

(A) Footings and Foundations;

(B) Beams;

(C) Headers;

(D) Girders;

(E) Lintels;

(F) Columns (other than a column that is designed to be cosmetic);

(G) Load-Bearing portions of walls and partitions;

(H) Roof framing systems, to include ceiling framing;

(I) Floor systems; and

(J) Masonry Arches.

(12) Manufactured Product--a component of the home that was manufactured away from the site of the home and that was installed in the home without significant modifications to the product as manufactured. Manufactured products commonly installed in residential construction include but are not limited to dishwashers, cook tops, ovens, refrigerators, trash compactors, microwave ovens, kitchen vent fans, central air conditioning coils and compressors, furnace heat exchangers, water heaters, carpet, windows, doors, light fixtures, fireplace inserts, pipes and electrical wires. For purposes of this chapter, a manufactured product includes any component of a home for which the manufacturer provides a warranty, provided that the manufacturer permits transfer of the warranty to the homeowner.

(13) Original Construction Elevations--actual elevations of the foundation taken prior to substantial completion of the residential construction project. Such actual elevations shall include elevations of porches and garages if those structures are part of a monolithic foundation. To establish original construction elevations, elevations shall be taken at a rate of approximately one elevation per 100 square feet showing a reference point, subject to obstructions. Each elevation shall describe the floor. If no such actual elevations are taken then the foundation for the habitable areas of the home are presumed to be level +/- 0.75 inch (three-quarters of an inch) over the length of the foundation.

(14) Performance Standard(s)--the standard(s) to which a home or an element or component of a home constructed as a part of new home construction or a material improvement or interior renovation must perform.

(15) Span--the distance between two supports.

(16) Substantial Completion--the later of:

(A) the stage of construction when a new home, addition, improvement, or alteration to an existing home is sufficiently complete that the home, addition, improvement or alteration can be occupied or used for its intended purpose; or

(B) if required, the issuance of a final certificate of inspection or occupancy by the applicable governmental authority.

(d) Resolving conflicts among standards. When an inconsistency exists between the Code, manufacturer’s instructions and specifications, the standard required by the United States Department of Housing and Urban Development for Federal Housing Administration or Veterans Administration programs, ANSI/ASHRAE Standard (62.2-2003) or the commission-adopted performance standards, the most restrictive requirement shall apply.

§304.2.General Provisions Applicable to all Residential Construction for New Homes, Material Improvements and Interior Renovations.

(a) Builder Responsibilities for Compliance with Performance Standards and Repair Obligations.

(1) Builder’s Work. The builder is responsible for all work performed under the direction of the builder for the period of the applicable warranty. The builder is only responsible for construction defects about which the builder receives notice on or before the second anniversary of the date of discovery of the alleged construction defect but in no event later than thirty days following the applicable warranty period stated in §304.3(a) of this subchapter, unless otherwise expressly stated herein.

(2) Repair of a construction defect. Any repair shall be performed in a manner and using such materials and methods as recommended by the third-party inspector in accordance with the inspector’s duties under §313.14 of this title and consistent with the Code, the performance standard or in accordance with §304.2(a). In the event a third-party inspector determines that a construction defect is present but the inspector does not make a recommendation as to the procedure or method of repair, then the repair shall be in accordance with usual and customary building practices or as agreed by the parties. If the third-party inspector’s report is appealed, then any repairs shall be performed in a manner and using such materials and methods as recommended by the appellate panel. If the appellate panel does not make a recommendation as to the procedure or method of repair, then the repair shall be made in accordance with the usual and customary business practices or as agreed by the parties.

(3) Repair Condition. In connection with a repair of a construction defect, any repairs performed by the builder will include those components of the home that have to be removed or altered in order to repair the construction defect. Repair shall be made so that the condition is returned to its condition as it existed at the time immediately preceding the construction defect.

(4) Finish. Surfaces altered incident to any repair will be finished or touched up to match the surrounding area as closely as practical. In connection with the repair of finish or surface material, such as paint, wallpaper, flooring or a hard surface, the builder will match the standard and grade as closely as reasonably possible. Builder will attempt to match the finish, but will not be responsible for discontinued patterns or materials, color variations or shade variations. When the surface finish material must be replaced and the original material has been discontinued, the builder is responsible for installing replacement material substantially similar in appearance to the original material.

(5) Manufactured Products. The builder shall install all manufactured products in accordance with the manufacturer's instructions and specifications.

(A) The builder shall use only new manufactured products and parts unless otherwise agreed in writing by the parties. If the builder did not install a manufactured product in accordance with the manufacturer's specifications or use newly manufactured parts as required, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall notify the builder of a known construction defect not later than the second anniversary of the date of discovery of the construction defect or not later than thirty days following the applicable warranty period provided in §304.3(a) of this subchapter.

(6) Specialty Feature. Notwithstanding a performance standard stated in this chapter, a specialty feature, which is work performed or material supplied incident to certain design elements shown on the construction plans and specifications and agreed to in writing by the builder and the homeowner, shall be deemed to be compliant with the performance standards stated in this chapter so long as all items are compliant with the Code.

(b) Exceptions and Exclusions from Builder’s Responsibilities.

(1) The builder is not responsible for repair, loss or damage to a component or that part of a component of a home caused by or made worse by any of the following:

(A) Work performed or material supplied incident to construction, modification or repair to the home performed by anyone other than the builder or persons providing work or material at the direction of the builder.

(B) The negligence, improper maintenance, misuse, abuse, failure to follow manufacturer's recommendations, failure to take reasonable action to mitigate damage, failure to take reasonable action to maintain the residence or other action or inaction of anyone other than the builder or persons providing work or material at the direction of the builder.

(C) Failure of the homeowner to comply with the homeowner’s responsibilities as set forth in subsection (c) of this section or as may be stated separately elsewhere in this chapter.

(D) Alterations to the grade of the soil that are not in compliance with the Code or applicable governmental regulations.

(E) Normal wear and tear or normal deterioration to any component of the home.

(F) Extreme weather conditions.

(G) Riot, civil commotion, war, terrorism, vandalism, aircraft, vehicle or boat.

(H) Fire, smoke or water damage unless such loss or damage is a direct result of a construction defect.

(I) Change in the underground water table that exerts pressure on, seeps, or leaks under the home, sidewalk, driveway, foundation or other structure or causes subsidence or sinkholes.

(J) Erosion or accretion of soils unless such loss or damage is a direct result of a construction defect.

(K) Insects, birds, rodents, vermin or other wild or domestic animals unless such loss or damage is a direct result of a construction defect.

(L) The quality and potability of water unless caused by a construction defect.

(M) While the home is being used primarily for nonresidential purposes.

(N) Use for which the home or the component of the home was not designed.

(O) Use that exceeds the normal design loads prescribed by the Code or the engineer of record.

(P) Homeowner delay in reporting a known construction defect or failing to take reasonable action necessary to prevent further damage to the home.

(Q) For remodeling projects, improvements, alterations or additions to an existing residence where the performance standard cannot be achieved due to an existing condition.

(R) Abuse or misuse of a home component or manufactured product by anyone other than the builder or persons providing work or material at the direction of the builder.

(2) No Actual Physical Damage. The builder shall not be responsible for any condition that does not result in actual physical damage to the home, including, but not limited to the presence of radon gas, formaldehyde or other pollutants or contaminants, or the presence or effect of mold, mildew, toxic material, or volatile organic compound, unless such condition is a direct result of a construction defect.

(c) Homeowner's Responsibilities.

(1) Home Maintenance. Maintenance of the home and the lot on which the home is located are essential to the proper functioning of the home. The homeowner is responsible for maintenance of the home and the lot on which it is located. The homeowner is responsible for maintenance items described in this paragraph and those maintenance items identified separately in the performance standards set forth in this chapter. Additionally, the homeowner is responsible for ongoing maintenance responsibilities that affect the performance of the home but that may not be expressly stated in this chapter. Such ongoing maintenance responsibilities include, but are not limited to, periodic repainting and resealing of finished surfaces as necessary, caulking for the life of the home, regular maintenance of mechanical systems, regular replacement of HVAC filters, cleaning and proper preservation of grading around the home and drainage systems to allow for the proper drainage of water away from the home.

(2) Manufactured Products. The homeowner shall use and perform periodic maintenance on all manufactured products according to the manufacturer's instructions and specifications. The misuse, abuse, neglect or other failure to follow manufacturer's specifications with regard to manufactured products may void the manufacturer's warranty.

(3) Landscape Planting. The homeowner shall take measures to prevent landscaping materials or plants from contacting the exterior surface of the home and from interfering with the proper drainage of water away from the foundation. The homeowner should not improperly alter the proper drainage pattern or grade of the soil within ten feet of the foundation so that it negatively impacts the home’s performance or fails to comply with the Code.

(4) Humidity or Dryness in the Home. The homeowner should take the following actions to prevent excessive moisture accumulation by:

(A) properly using ventilation equipment;

(B) preventing excessive temperature fluctuation; and

(C) taking any other action reasonably necessary to avoid excessive moisture, dampness, humidity or condensation in the home that may lead to damage due to excessive moisture or dryness.

(5) Proper Maintenance and Care of Home Components. The homeowner shall properly maintain each component of the home including proper cleaning, care and upkeep of the home. The homeowner shall use home components for the purposes for which they are intended and shall not damage, misuse or abuse home components.

(6) Self-Help. Upon observation of a circumstance that may cause further damage to the home or a component of the home, the homeowner shall take reasonable action necessary to prevent further damage to the home.

§304.3.Limited Warranties.

(a) Warranty periods. The minimum warranty periods for residential construction and residential improvements are:

(1) one year for workmanship and materials;

(2) two years for plumbing, electrical, heating, and air-conditioning delivery systems;

(3) ten years for major structural components of the home; and

(4) ten years for the warranty of habitability.

(b) Manufactured Product Warranties. The builder will assign to the homeowner, without recourse, the manufacturer’s warranty for all manufactured products that are covered by a manufacturer’s warranty. Any rights that inure to the homeowner provided under a manufacturer's warranty are the obligation of the manufacturer. The builder does not assume any of the obligations of the manufacturer resulting from a manufacturer's warranty, but shall coordinate with the manufacturer, suppliers or agents to achieve compliance with the performance standard. If the manufacturer does not comply with the manufacturer’s warranty within a reasonable period of time, the builder will make the affected condition comply with the performance standard and seek redress from the manufacturer.

(c) Workmanship and Materials Warranty and Performance Standards. Workmanship and materials in residential construction or residential improvements are warranted to perform to the performance standards that are set forth this chapter for the minimum period established in subsection (a) paragraph (1) of this section, unless a greater period of warranty is agreed to by the parties.

(d) Delivery Systems Warranty and Performance Standards. Plumbing, electrical, heating and air-conditioning delivery systems in residential construction and residential improvements shall be warranted to perform to the performance standards that are set forth in this chapter for the minimum period established in subsection (a) paragraph (2) of this section, unless a greater period of warranty is agreed to by the parties.

(e) Structural Components Warranty and Performance Standards. Major structural components in residential construction and residential improvements shall be warranted to perform to the performance standards set forth in this chapter for the minimum period established in subsection (a) paragraph (3) of this section, unless a greater period of warranty is agreed to by the parties.

(f) Warranty of Habitability.

(1) All residential construction shall include a warranty of habitability for the minimum period established in subsection (a) paragraph (4) of this section, unless a greater period of warranty is agreed to by the parties.

(2) The warranty of habitability is a builder's obligation to construct a home or a home improvement that:

(A) is in compliance with the performance standards; and

(B) is safe, sanitary and fit for humans to inhabit.

(3) An alleged construction defect under the warranty of habitability must have a direct adverse affect on the habitable areas of the home. The warranty applies to an alleged construction defect that would otherwise have been covered by the limited warranties of §304.3(a)(1) and (2), but arose after the termination of those warranty periods, and the alleged construction defect must not have been discoverable by a reasonable prudent inspection or examination of the home or home improvement within the applicable warranty periods.

(4) A request to participate in the State-sponsored Inspection and Dispute Resolution Process (SIRP) for breach of the warranty of habitability must be filed with the commission within two years following the discovery of the condition but not later than thirty days after the tenth anniversary of the effective date of the warranty as determined by subsection (g) of this section.

(g) Effective Date of Warranties.

(1) Unless otherwise provided by a written agreement between the builder and the initial homeowner or by a manufacturer, a warranty period as described in this section for a new home begins on the earlier of the date of occupancy or transfer of title from the builder to the initial homeowner.

(2) Unless otherwise provided by a written agreement between the builder and the homeowner, a warranty period as described in this section for an improvement other than a new home or for a partially built home, which by agreement between the homeowner and the builder, someone other than the builder will complete, begins on the date the improvement is substantially completed or the terms of the construction contract are substantially fulfilled.

(h) Exclusive Warranties.

(1) The warranties established by the commission in this chapter supersede all implied warranties for new residential construction or residential improvements that commence on or after the effective date of this chapter.

(2) The warranties established by the commission in this chapter are the only warranties applicable to new residential construction unless a particular warranty is created by a statute that expressly refers to residential construction or residential improvements or is created by any express warranty set forth in writing by the builder.

(i) Waiver By Contract Prohibited. A contract between a builder and a homeowner may not waive or modify to lessen the warranty of habitability or the limited statutory warranties and building and performance standards adopted under this chapter.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 31, 2005.

TRD-200500433

Susan Durso

General Counsel

Texas Residential Construction Commission

Effective date: June 1, 2005

Proposal publication date: October 22, 2004

For further information, please call: (512) 475-0595

10 TAC §§304.10 - 304.33

Cross Reference to Statutes: Title 16, Property Code ch. 426 and §§408.001 and 430.001

No other statutes, articles, or codes are affected by the adoption.

§304.10.Performance Standards for Foundations and Slabs.

(a) Performance Standards for Raised Floor Foundations or Crawl Spaces.

(1) A crawl space shall be graded and drained properly to prevent surface run-off from accumulating deeper than two inches in areas 36 inches or larger in diameter. Exterior drainage around perimeter crawl space wall shall not allow water to accumulate within ten feet of the foundation for more than 24 hours after a rain except in a sump that drains other areas.

(A) If the crawl space is not graded or does not drain in accordance with the performance standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall not modify improperly the existing grade or allow water from an irrigation system to cause water to accumulate excessively under the foundation. The homeowner shall not allow landscape plantings to interfere with proper drainage away from the foundation. The homeowner shall not use the crawl space for storage of any kind.

(2) Water shall not enter through the basement or crawl space wall or seep through the basement floor.

(A) If water enters the basement or crawl space wall or seeps through the basement floor, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (2) of this subsection.

(B) The homeowner shall not modify improperly the existing grade or allow water from an irrigation system to cause water to accumulate excessively near the foundation. The homeowner shall not allow landscape plantings to interfere with proper drainage away from the foundation.

(b) Performance Standards for Concrete Slab Foundations, excluding Finished Concrete Floors.

(1) Concrete floor slabs in living spaces that are not otherwise designed with a slope for drainage, such as a laundry room, shall not have excessive pits, depressions or unevenness equal to or exceeding 3/8 of an inch in any 32 inches and shall not have separations or cracks that equal or exceed 1/8 of an inch in width or 1/16 of an inch in vertical displacement. If a concrete floor slab in a living space fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within that standard.

(2) Concrete slabs shall not have protruding objects, such as a nail, rebar or wire mesh. If a concrete slab has a protruding object, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(3) A separation in an expansion joint in a concrete slab shall not equal or exceed 1/4 of an inch vertically or one inch horizontally from an adjoining section. If an expansion joint in a concrete slab fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Exterior Concrete including Patios, Stem Walls, Driveways, Stairs or Walkways.

(1) Concrete corners or edges shall not be damaged excessively due to construction activities. If a concrete corner or edge is damaged excessively, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(2) A crack in exterior concrete shall not cause vertical displacement equal to or in excess of 1/4 of an inch or horizontal separation equal to or excess of 1/4 of an inch.

(A) If an exterior concrete slab is cracked, separated or displaced beyond the standard of performance stated in paragraph (2) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall not over-water surrounding soil or allow the surrounding soil to become excessively dry. The homeowner shall not allow heavy equipment to be placed on the concrete.

(3) The finish on exterior concrete shall not be excessively smooth, so that the surface becomes slippery.

(A) If the finish on exterior concrete is excessively smooth so that the surface becomes slippery, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (3) of this subsection.

(B) A concrete surface that has been designed to be smooth is excepted from this performance standard.

(4) Exterior concrete shall not contain a protruding object, such as a nail, rebar or wire mesh. If an exterior concrete surface has a protruding object, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(5) A separation in an expansion joint in an exterior concrete shall not equal or exceed 1/2 of an inch vertically from an adjoining section or one inch horizontally, including joint material. If an expansion joint fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(6) A separation in a control joint shall not equal or exceed 1/4 of an inch vertically or 1/2 of an inch horizontally from an adjoining section. If a control joint fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) Concrete stair steepness and dimensions, such as tread width, riser height, landing size and stairway width shall comply with the Code. If the steepness and dimensions of concrete stairs do not comply with the Code, the builder shall take such action as is necessary to bring the variance within the standard for Code compliance.

(8) Handrails shall remain securely attached to concrete stairs. If handrails are not firmly attached to the concrete stairs, the builder shall take such steps necessary as to attach the rails securely.

(9) Concrete stairs or stoops shall not settle or heave in an amount equal to or exceeding 3/8 of an inch. Concrete stairs or stoops shall not separate from the home in an amount equal to or exceeding one inch, including joint material. If the stairs or stoops settle or heave, or separate from the home in an amount equal to or exceeding the standard above builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(10) A driveway will not have a negative slope unless due to site conditions, the lot is below the road. If a driveway has a negative slope due to site conditions, it shall have swales or drains properly installed to prevent water from entering into the garage. If a driveway has a negative slope that allows water to enter the garage in normal weather conditions, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(11) Concrete floor slabs in detached garages, carports or porte-cocheres shall not have excessive pits, depressions, deterioration or unevenness. Separations or cracks in these slabs shall not equal or exceed 3/16 of an inch in width, except at expansion joints, or 1/8 of an inch in vertical displacement. If a concrete floor slab in a detached garage, carport or porte-cochere does not meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

§304.11.Performance Standards for Framing.

(a) Building and Performance Standard for Walls.

(1) Walls shall not bow or have depressions that equal or exceed 1/4 of an inch out of line within any 32-inch horizontal measurement as measured from the center of the bow or depression or 1/2 of an inch within any eight-foot vertical measurement. If a wall does not meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Walls shall be level, plumb and square to all adjoining openings or other walls within 3/8 of an inch in any 32-inch measurement. If a wall does not meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A crack in a beam or a post shall not equal or exceed 1/2 of an inch in width at any point along the length of the crack. If a crack in the beam or post fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) A non-structural post or beam shall not have a warp or twist equal or exceeding one inch in eight-feet of length. Warping or twisting shall not damage beam pocket. If a non-structural post or beam fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) Exterior sheathing shall not delaminate or swell.

(A) If exterior sheathing delaminates or swells, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (5) of this subsection.

(B) The homeowner shall not make penetrations in the exterior finish of a wall that allow moisture to come in contact with the exterior sheathing.

(6) An exterior moisture barrier shall not allow an accumulation of moisture inside the barrier.

(A) If an exterior moisture barrier allows an accumulation of moisture inside the barrier, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (6) of this subsection.

(B) The homeowner shall not make penetrations through the exterior moisture barrier that permit the introduction of moisture inside the barrier.

(b) Performance Standards for Ceilings. A ceiling shall not bow or have depressions that equal or exceed 1/2 of an inch out of line within a 32-inch measurement as measured from the center of the bow or depression running parallel with a ceiling joist. If a ceiling has a bow or depression that is greater than the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Sub-floors.

(1) Under normal residential use, the floor shall not make excessive squeaking or popping sounds. If the floor makes excessive squeaking and popping sounds under normal residential use, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(2) Sub-floors shall not delaminate or swell to the extent that it causes observable physical damage to the floor covering or visually affects the appearance of the floor covering. Exposed structural flooring, where the structural flooring is used as the finished flooring, is excluded from the standard stated in this paragraph. If a sub-floor delaminates or swells to the extent that it affects the flooring covering as stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Sub-flooring shall not have excessive humps, ridges, depressions or slope within any room that equals or exceeds 3/8 of an inch in any 32-inch direction. If the sub-flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(d) Performance Standards for Stairs.

(1) Stair steepness and dimensions such as tread width, riser height, landing size and stairway width, shall comply with the Code. If stair steepness and dimensions do not comply with the Code, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(2) Under normal residential use, stairs shall not make excessive squeaking or popping sounds. If stairs make excessive squeaking and popping sounds under normal residential use, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

§304.12.Performance Standards for Drywall.

(a) A drywall surface shall not have a bow or depression that equals or exceeds 1/4 of an inch out of line within any 32-inch horizontal measurement as measured from the center of the bow or depression or 1/2 of an inch within any eight-foot vertical measurement. If a drywall surface fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(b) A ceiling made of drywall shall not have bows or depressions that equal or exceed 1/2 of an inch out of line within a 32-inch measurement as measured from the center of the bow or depression running parallel with a ceiling joist or within 1/2 of an inch deviation from the plane of the ceiling within any eight-foot measurement. If a drywall ceiling fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) A drywall surface shall not have a crack such that any crack equals or exceeds 1/32 of an inch in width at any point along the length of the crack. If a drywall surface has a crack that exceeds the standard in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(d) Crowning at a drywall joint shall not equal or exceed 1/4 of an inch within a twelve-inch measurement centered over the drywall joint. If crowning at a drywall joint exceeds the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard. Crowning occurs when a drywall joint is higher than the plane of the drywall board on each side.

(e) A drywall surface shall not have surface imperfections such as blisters, cracked corner beads, seam lines, excess joint compound or trowel marks that are visible from a distance of six feet or more in normal light. If a drywall surface fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(f) A drywall surface shall not be out of level (horizontal), plumb (vertical) or square (perpendicular at a 90-degree angle) such that there are variations in those measurements to wall or surface edges at any opening, corner, sill, shelf, etc. shall not equal or exceed 3/8 of an inch in any 32-inch measurement along the wall or surface.

(1) If a drywall surface fails to meet the standard stated in subsection (f) of this section, the builder shall take such action as is necessary to bring the variance within the standard.

(2) This standard shall not apply to remodeling projects where existing conditions do not permit the builder to achieve the performance standard. At or about the time of discovery of such a preexisting condition, a remodeler shall notify the homeowner, in writing, of any existing condition that prevents achievement of the standard.

(g) Nails or screws shall not be visible in a drywall surface. If nails or screws are visible, the builder shall take such action as is necessary to bring the variance within the standard.

§304.13.Performance Standards for Insulation.

(a) Insulation shall be installed in the walls, ceilings and floors of a home in accordance with the building plan and specifications and the Code. If the insulation in walls, ceilings or floors is not in accordance with the building plans and specifications and the Code, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(b) Blown insulation in the attic shall not displace or settle so that it reduces the R-value below manufacturer’s specifications, the building plans and the Code. If the blown insulation in the attic reduces, settles or is displaced to the extent that the R-value is below the manufacturer’s specifications, the building plans and Code, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(c) A gap equal to or in excess of 1/4 of an inch between insulation batts or a gap between insulation batts and framing members is not permitted. If a gap equal to or greater than 1/4 of an inch occurs between insulation batts or a gap occurs between an insulation batt and a framing member, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(d) Insulation shall not cover or block a soffit vent to the extent that it blocks the free flow of air. If the insulation covers or blocks the soffit vent, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

§304.14.Performance Standards for Exterior Siding and Trim.

(a) Performance Standards for Exterior Siding.

(1) Exterior siding shall be equally spaced and properly aligned. Horizontal siding shall not equal or exceed 1/2 of an inch off parallel with the bottom course or 1/4 of an inch off parallel with the adjacent course from corner to corner. If siding is misaligned or unevenly spaced and fails to meet the performance standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Siding shall not gap or bow. A siding end joint shall not have a gap that equals or exceeds 1/4 of an inch in width. Siding end joint gaps shall be caulked. A bow in siding shall not equal or exceed 3/8 of an inch out of line in a 32-inch measurement. If siding has gaps or bows that exceed the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Nails shall not protrude from the finished surface of siding but nail heads may be visible on some products where allowed by the manufacturer’s specifications. If a nail protrudes from the finished surface of siding, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(4) Siding shall not have a nail stain. If siding has a nail stain, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(5) Siding and siding knots shall not become loose or fall off. If siding or siding knots become loose or fall off, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(6) Siding shall not delaminate. If siding fails to comply with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) Siding shall not cup in an amount equal to or exceeding 1/4 of an inch in a six-foot run. If siding fails to comply with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(8) Siding shall not have cracks or splits that equal or exceed 1/8 of an inch in width. If siding fails to comply with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Exterior Trim.

(1) A joint between two trim pieces shall not have a separation at the joint equal to or exceeding 1/4 of an inch in width and all trim joints shall be caulked. If there is a separation at a trim joint that fails to comply with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Exterior trim and eave block shall not warp in an amount equal to or exceeding 1/2 of an inch in an eight-foot run. If exterior trim or eave block warps in excess of the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Exterior trim and eave block shall not cup in an amount equal to or in excess of a 1/4 of an inch in a six-foot run. If exterior trim or eave block cups in excess of the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) Exterior trim and eave block shall not have cracks or splits equal to or in excess of 1/8 of an inch in average width. If exterior trim or eave block has cracks in excess of the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) Trim shall not have nails that completely protrude through the finished surface of the trim but nail heads may be visible on some products.

(A) If a nail protrudes from the finished surface of the trim, the builder shall take such action as is necessary to bring the variance within the standard within the standard stated in paragraph (5) of this subsection.

(B) Some products specify that the nails be flush with the trim surface. When these products are used, visible nail heads are not considered protruding nails as long as they are painted over.

(6) Trim shall not have a nail stain. If trim has a nail stain, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

§304.15.Performance Standards for Masonry including Brick, Block and Stone.

(a) A masonry wall shall not bow in an amount equal to or in excess of one inch when measured from the base to the top of the wall.

(1) If a masonry wall fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The standard set forth in this subsection does not apply to natural stone products.

(b) A masonry unit or mortar shall not be broken or loose. If a masonry unit or mortar fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) A masonry mortar crack shall not equal or exceed 1/8 of an inch in width. If a crack in masonry mortar fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(d) A masonry unit or mortar shall not deteriorate. If a masonry unit or mortar fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(e) Masonry shall not have dirt, stain or debris on the surface due to construction activities. If masonry fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(f) A gap between masonry and adjacent material shall not equal or exceed 1/4 of an inch in average width and all such gaps shall be caulked. If a gap between masonry and adjacent material fails to meet the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(g) Mortar shall not obstruct a functional opening, such as a vent, weep hole or plumbing cleanout.

(1) If the mortar obstructs a functional opening, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(2) The homeowner shall not put any material into weep holes. Weep holes are an integral part of the wall drainage system and must remain unobstructed.

§304.16.Performance Standards for Stucco.

(a) Stucco surfaces shall not be excessively bowed, uneven, or wavy.

(1) If a stucco surface fails to perform as stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) This standard shall not apply to decorative finishes.

(b) Stucco shall not be broken or loose. If stucco is broken or loose, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(c) Stucco shall not have cracks that equal or exceed 1/8 of an inch in width at any point along the length of the crack.

(1) If the stucco fails to perform as stated in subsection (c) of this section, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The builder shall not be responsible for repairing cracks in stucco caused by the homeowner’s actions, including the attachment of devices to the stucco surface, such as, but not limited to, patio covers, plant holders, awnings and hose racks.

(d) Stucco shall not deteriorate excessively.

(1) If the stucco deteriorates excessively, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The homeowner shall not allow water from irrigation systems to contact stucco finishes excessively.

(e) Stucco shall not have dirt, stain or debris on surface due to construction activities. If the stucco fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(f) Stucco surfaces shall not have imperfections that are visible from a distance of six feet under normal lighting conditions that disrupt the overall uniformity of the finished pattern. If the stucco fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(g) The lath shall not be exposed. If the lath is exposed, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(h) A separation between the stucco joints shall not equal or exceed 1/16 of an inch in width. If a separation between the stucco joints occurs in excess of the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(i) A separation between a stucco surface and adjacent material shall not equal or exceed 1/4 of an inch in width and all separations shall be caulked. If a separation occurs between a stucco surface and adjacent material occurs in excess of the standard stated in this subsection or if such a separation is not caulked, the builder shall take such action as is necessary to bring the variance within the standard.

(j) Stucco shall not obstruct a functional opening, such as a vent, weep hole or plumbing cleanout. If stucco obstructs a functional opening, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(k) Stucco screed shall have a minimum clearance of at least 4 inches above the soil or landscape surface and at least 2 inches above any paved surface. If the stucco screed clearance does not meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(l) Exterior Installation Finish Systems (EIFS) stucco screed shall clear any paved or unpaved surface by 6 inches. If the EIFS stucco screed clearance does not meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.17.Performance Standards for Roofs.

(a) Flashing shall prevent water penetration.

(1) If the flashing fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The builder shall not be responsible for leaks caused by extreme weather.

(b) The roof shall not leak.

(1) If the roof fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The builder shall not be responsible for leaks caused by extreme weather.

(3) The homeowner shall perform periodic maintenance to prevent leaks due to build-up of debris, snow or ice. The homeowner shall take such action as is necessary to prevent downspouts and gutters from becoming clogged.

(c) A vent, louver or other installed attic opening shall not leak.

(1) If a vent, louver or other installed attic opening fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The builder shall not be responsible for leaks caused by extreme weather.

(d) A gutter or downspout shall not leak or retain standing water. After cessation of rainfall, standing water in an unobstructed gutter shall not equal or exceed 1/2 of an inch in depth.

(1) If a gutter or downspout fails to meet the standard in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The builder shall not be responsible for leaks caused by extreme weather.

(3) The homeowner shall maintain and clean gutters and downspouts to prevent buildup of debris or other obstructions.

(e) Shingles, tiles, metal or other roofing materials shall not become loose or fall off in wind speeds less than those set forth in the manufacturer’s specifications. If the shingles, tiles, metal or other roofing materials fail to meet the standard in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(f) A skylight shall not leak. If a skylight fails to meet the standard in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(g) Water shall drain from a built-up roof within two hours after cessation of rainfall. The standard does not require that the roof dry completely within the time period. If the built-up roof fails to meet the standard in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(h) A roof tile shall not be cracked or broken. No shingle shall be broken so that it detracts from the overall appearance of the home. If roof tiles or shingles fail to meet the standard in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(i) A pipe, vent, fireplace or other object designed to penetrate the roof shall not be located within the area of roof valley centerline without proper "cricketing" or other Code-approved water diversion methods. If a pipe, vent, fireplace or other object designed to penetrate the roof is not correctly located as provided in the performance standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(j) The exterior moisture barrier of the roof shall not allow moisture penetration.

(1) If the exterior moisture barrier fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The homeowner shall not make penetrations through exterior moisture barrier of the roof.

§304.18.Performance Standards for Doors and Windows.

(a) Performance Standards for Both Doors and Windows.

(1) When closed, a door or window shall not allow excessive infiltration of air or dust. If a door or window fails to meet the performance standard stated in this paragraph the builder shall take such action as is necessary to bring the variance within the standard.

(2) When closed, a door or window shall not allow excessive accumulation of moisture inside the door or window.

(A) If a door or window fails to meet the performance standard stated in paragraph (2) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall keep weep holes on windows and doors free of dirt buildup and debris, thereby allowing water to drain properly.

(C) Most door and window assemblies are designed to open, close and weep moisture--allow condensation or minor penetration by the elements to drain outside.

(3) Glass in doors and windows shall not be broken due to improper installation or construction activities. If glass in a window or door is broken due to improper installation or construction activities, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(4) A screen in a door or window shall fit properly and shall not be torn or damaged due to construction activities. A screen shall not have a gap equal to or exceeding 1/4 of an inch between the screen frame and the window frame. If a screen in a door or window fails to meet the performance standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) There shall be no condensation between window and door panes in a sealed insulated glass unit.

(A) If a window or door fails to meet the performance standard stated in paragraph (5) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall not apply a tinted window film or coating to window or door panes in sealed insulated glass units.

(6) A door or window latch or lock shall close securely and shall not be loose or rattle. If a door, window latch or lock fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) A door or window shall operate easily and smoothly and shall not require excessive pressure when opening or closing. If a door or window fails to meet the performance standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(8) A door or window shall be painted or stained according to the manufacturers’ specifications. If a window or door fails to meet the performance standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Windows. A double hung window shall not move more than two inches when put in an open position. If a window fails to meet the performance standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Doors.

(1) A sliding door and door screen shall stay on track.

(A) If a sliding door or door screen fails to perform to the standard stated in paragraph (1) of this subsection, builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall clean and lubricate sliding door or door screen hardware as necessary.

(2) The spacing between an interior door bottom and original floor covering, except closet doors, shall not exceed 1.5 inches and shall be at least 1/2 of an inch. The spacing between an interior closet door bottom and original floor covering shall not exceed two inches and shall be at least 1/2 of an inch. If the spacing between a door bottom and the original floor covering does not meet the performance standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A door shall not delaminate. If a door becomes delaminated, a builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(4) A door panel shall not split so that light from the other side is visible. If a door panel fails to meet the performance standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) A door shall open and close without binding. If a door fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(6) A door shall not warp to the extent that it becomes inoperable. A warp in a door panel shall not equal or exceed 1/4 of an inch from original dimension measured vertically, horizontally or diagonally from corner to corner. If a door fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) A storm door shall open and close properly and shall fit properly. If a door fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(8) When a door is placed in an open position, it shall remain in the position it was placed, unless the movement is caused by airflow. If a door fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(9) A metal door shall not be dented or scratched due to construction activities. If a metal door fails to comply with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(d) Performance Standards for Garage Doors.

(1) A metal garage door shall not be dented or scratched due to construction activities. If a metal garage door fails to comply with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) A garage door opener, if provided, shall operate properly in accordance with manufacturer’s specifications.

(A) If a garage door opener fails to perform in accordance with the standard stated in paragraph (2) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) A homeowner shall maintain tracks, rollers and chains and shall not block or bump sensors to electric garage door openers.

(3) A garage door shall not allow excessive water to enter the garage and the gap around the garage door shall not equal or exceed 1/2 of an inch in width. If a garage door allows excessive water to enter the garage or the gap around the garage door equals or exceeds 1/2 of an inch, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(4) A garage door spring shall operate properly and shall not lose appreciable tension, break or be undersized. If a garage door spring fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) A garage door shall remain in place at any open position, operate smoothly and not be off track. If a garage door fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

§304.19.Performance Standards for Interior Flooring.

(a) Performance Standards for Carpet, Vinyl Flooring and Wood Flooring. Performance standards for ceramic tile, flagstone, marble, granite, slate, quarry tile other hard surface floors, except finished concrete floors, are located in §304.20 of this subchapter.

(b) Performance Standards for Carpet.

(1) Carpet shall not wrinkle and shall remain tight, lay flat and be securely fastened. If the carpet fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Carpet seams shall be smooth without a gap or overlap. If the carpet fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Carpet shall not be stained or spotted due to construction activities. If the carpet fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Finished Concrete Floor.

(1) A finished slab, located in a living space that is not otherwise designed for drainage, shall not have pits, depressions or unevenness that equals or exceeds 3/8 of an inch in any 32 inches.

(A) If a finished concrete slab in a living space fails to meet the standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) Finished concrete slabs in living spaces that are designed for drainage, such as a laundry room, are excepted from the standards stated in paragraph (1) of this subsection.

(2) Finished concrete slabs in living spaces shall not have separations, including joints, and cracks that equal or exceed 1/8 of an inch in width or 1/16 of an inch in vertical displacement. If a finished concrete slab in a living space fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(d) Performance Standards for Wood Flooring.

(1) Wood flooring shall not have excessive humps, depressions or unevenness that equals or exceeds 3/8 of an inch in any 32-inch direction within any room. If wood flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Wood flooring shall remain securely attached to the foundation or sub-floor unless the wood flooring is designed to be installed without nails, glue, adhesives or fasteners. If wood flooring fails to meet the standards of this, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Wood flooring shall not have open joints and separations that equal or exceed 1/8 of an inch.

(A) If wood flooring fails to meet the standards of paragraph (3) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) These standards do not apply to non-hardwood species that contain greater moisture and may shrink after installation or structural floors that are designed to serve as the finished floor. If the floor is designed as a structural finish floor, the builder must provide a written explanation of the characteristics of that floor to the homeowner prior to the execution of the contract.

(4) Strips of floorboards shall not cup in an amount that equals or exceeds 1/16 of an inch in height in a three-inch distance when measured perpendicular to the length of the board.

(A) If the wood flooring fails to meet the standard stated in paragraph (4) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) This standard does not apply to non-hardwood species that typically shrink after installation or structural floors that are designed to serve as the finished floor. If the floor is designed as a structural finish floor, the builder must provide a written explanation of the characteristics of that floor to the homeowner.

(5) Unless installed as a specialty feature, wood flooring shall not have excessive shade changes or discoloration due to the construction activities of the builder. If the wood floor fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(6) Unless installed as a specialty feature, wood flooring shall not be stained, spotted or scratched due to construction activities of the builder. If wood flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(e) Performance Standards for Vinyl Flooring.

(1) Vinyl flooring shall be installed square to the most visible wall and shall not vary by 1/4 of an inch in any six-foot run. If the vinyl flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The seam alignment in vinyl flooring shall not vary such that the pattern is out of alignment in an amount that equals or exceeds 1/8 of an inch. If the vinyl flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Vinyl flooring shall remain securely attached to the foundation or sub-floor. If the vinyl flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) A vinyl floor shall not have a depression that equals or exceeds 1/2 of an inch in any six-foot run. If a vinyl floor has a depression that exceeds the standard stated in this paragraph and the depression is due to construction activities, the builder shall take such action as is necessary to bring the variance within the standard.

(5) A vinyl floor shall not have a ridge that equals or exceeds 1/2 of an inch when measured as provided in this paragraph. The ridge measurement shall be made by measuring the gap created when a six-foot straight edge is placed tightly three inches on each side of the defect and the gap is measured between the floor and the straight edge at the other end. If a vinyl floor has a ridge that fails to comply with the standard stated in this paragraph and the ridge is due to construction activities, the builder shall take such action as is necessary to bring the variance within the standard.

(6) Vinyl floor shall not be discolored, stained or spotted due to the construction activities of the builder. If the vinyl floor fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) Vinyl flooring shall not be scratched, gouged, cut or torn due to construction activities. If the vinyl flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(8) Debris, sub-floor seams, nails and/or screws shall not be detectable under the vinyl floor from a distance of three feet or more in normal light. If the vinyl flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(9) Sub-flooring shall not cause vinyl flooring to rupture. If vinyl flooring fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(10) A seam in vinyl flooring shall not have a separation that equals or exceeds 1/16 of an inch in width. Where dissimilar materials abut, there shall not be a gap equal to or greater than 1/8 of an inch. If vinyl flooring fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

§304.20.Performance Standards for Hard Surfaces, including Ceramic Tile, Flagstone, Marble, Granite, Slate, Quarry Tile, Finished Concrete or Other Hard Surfaces.

(a) Performance Standards for Hard Surfaces Generally.

(1) A hard surface shall not break or crack due to construction activities. If a hard surface is cracked or broken due to construction activities, the builder shall take such action as is necessary to bring the variance within the standard.

(2) A hard surface shall remain secured to the substrate. If a hard surface fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A surface imperfection in floor hard surface shall not be visible from a distance of three feet or more in normal light. A surface imperfection in non-floor hard surface shall not be visible from a distance of two feet or more in normal light. If a hard surface fails to meet the standards stated in this paragraph due to construction activities, the builder shall take such action as is necessary to bring the variance within the standard.

(4) Color variations between field hard surfaces and trim hard surfaces should not vary excessively due to construction activities.

(A) If color variations between field and trim hard surfaces are excessive and are due to construction activities, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (4) of this subsection.

(B) Natural products such as flagstone, marble, granite, slate and other quarry tile will have color variation.

(5) Hard surface areas shall not leak. If a hard surface area fails to perform in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(6) The surfaces of two adjacent hard surfaces shall not vary in an amount equal to or exceeding 1/16 of an inch displacement at a joint, with the exception of transition trim pieces. If a joint between two hard surfaces fails to meet the performance standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) Hard surface layout or grout line shall not be excessively irregular.

(A) If hard surface layouts or grout lines fail to meet the performance standard stated in paragraph (7) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) Natural products such as flagstone, marble, granite, slate, and other quarry tile will have size variations that may create irregular layouts or grout lines.

(8) Hard surface countertops shall be level to within 1/4 of an inch in any six-foot measurement. If a hard surface countertop is not level to within the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Grout.

(1) Grout shall not crack or deteriorate. If grout fails to meet the performance standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Grout shall not change shade or discolor excessively due to construction activities. If grout fails to perform to the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Concrete Countertops.

(1) A concrete countertop shall not have excessive pits, depressions, or unevenness that equal or exceed 1/8 of an inch in any 32-inch measurement. If a concrete countertop fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) A concrete countertop shall not have separations or cracks equal to or exceeding 1/16 of an inch in width or 1/64 of an inch in vertical displacement. If a concrete countertop fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A finished concrete countertop shall not be stained, spotted or scratched due to construction activities. If a concrete countertop fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) A concrete countertop shall not have a chipped edge that extends beyond 1/16 of an inch from the edge of the countertop due to construction activities. If a concrete countertop fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) A concrete countertop shall not change shade or discolor excessively due to construction activities. If a concrete countertop fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

§304.21.Performance Standards for Painting, Stain and Wall Coverings.

(a) Performance Standards for Caulking. Interior caulking shall not deteriorate or crack excessively. If the interior caulking fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Painting and Stain.

(1) Paint or stain shall not have excessive color, shade or sheen variation.

(A) If the paint or stain fails to meet the standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) This standard shall not apply to stained woodwork.

(2) Paint shall cover all intended surfaces so that unpainted areas shall not show through paint when viewed from a distance of six feet in normal light. If the painting fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Interior paint or stain shall not deteriorate. If paint or stain fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) Exterior paint or stain shall not deteriorate excessively. If paint or stain fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) Paint over-spray shall not exist on any surface for which it was not intended. If the paint is sprayed onto a surface for which it was not intended, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(6) Interior varnish, polyurethane or lacquer finish shall not deteriorate. If an interior finish fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard. If an interior finish fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) Exterior varnish, polyurethane or lacquer finishes shall not deteriorate excessively.

(A) If an exterior finish fails to meet the standard stated in paragraph (7) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) Exterior varnish, polyurethane or lacquer finishes that are subject to direct sunlight are excluded from this standard.

(8) Interior painted, varnished or finished surface shall not be scratched, dented, nicked or gouged due to construction activities. If interior painted, varnished or finished surfaces fail to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(9) A paint product shall perform as represented by the manufacturer to meet manufacturer’s specifications for washability and/or scrubability. If the paint product fails to meet the standards of this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Wall Coverings.

(1) A wall covering shall be properly secured to the wall surface and shall not peel or bubble. If a wall covering fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Pattern repeats in wall coverings shall match. Wall coverings shall be installed square to the most visible wall. Pattern repeats shall not vary in an amount equal to or exceeding 1/4 of an inch in any six-foot run. If the wall covering fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A wall covering seam shall not separate or gap. If the wall covering fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) Lumps or ridges in a wall covering shall not be detectable from a distance of six feet or more in normal light. If the appearance of the wall covering fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) Wall coverings shall not be discolored, stained or spotted due to construction activities. If a wall covering fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(6) Wall coverings shall not be scratched, gouged, cut or torn due to construction activities. If a wall covering fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) Wall coverings shall perform as represented by the manufacturer to meet manufacturer’s specifications for washability and/or scrubability. If a wall covering fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

§304.22.Performance Standards for Plumbing.

(a) Performance Standards for Plumbing Accessories.

(1) A fixture surface shall not have a chip, crack, dent or scratch due to construction activities. If a fixture fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) A fixture shall not have tarnish, blemishes or stains unless installed as a specialty feature.

(A) If a fixture fails to meet the standard stated in paragraph (2) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) Fixture finishes that are tarnished, blemished or stained due to high iron, manganese or other mineral content in water are excluded from this standard.

(3) A fixture or fixture fastener shall not corrode.

(A) If a fixture or fixture fastener fails to meet the standards of paragraph (3) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) A builder is not responsible for corrosion caused by factors beyond the manufacturer’s or the builder’s control, including the homeowner’s use of corrosive chemicals or cleaners or corrosion caused by water content.

(4) A decorative gas appliance shall be installed in accordance with manufacturer’s specifications and when so installed shall function in accordance with manufacturer's representations. If a decorative gas appliance fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) Fixtures shall be secure and not loose.

(A) If a fixture fails to meet the standard stated in paragraph (5) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall not exert excessive force on a fixture.

(6) A fixture stopper shall operate properly and shall retain water in accordance with the manufacturer’s specifications. If a fixture stopper fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(7) The toilet equipment shall not allow water to run continuously.

(A) If the toilet equipment fails to meet the standard stated in paragraph (7) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) If toilet equipment allows water to run continuously, the homeowner shall shut off the water supply or take such action as is necessary to avoid damage to the home.

(8) A toilet shall be installed and perform in accordance with the manufacturer’s specifications.

(A) If a toilet fails to meet the standard stated in paragraph (8) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) In the event of water spillage, the homeowner shall shut off the water supply and take such action as is necessary to avoid damage to the home.

(9) A tub or shower pan shall not crack. If a tub or shower pan fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(10) A tub or shower pan shall not squeak excessively. If a tub or shower pan fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(11) A water heater shall be installed and secured according to the manufacturer’s specifications and the Code. If a water heater fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(12) A waste disposal unit shall be installed and operate according to the manufacturer’s specifications. If a waste disposal unit fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(13) A faucet or fixture shall not drip or leak. This standard does not include drips or leaks due to debris or minerals from the water source, unless it is due to construction activities. If a faucet or fixture fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(14) A sump pump shall be installed in accordance with the manufacturer’s specifications and shall operate properly when so installed. If a sump pump fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Pipes and Vents.

(1) A sewer gas odor originating from the plumbing system shall not be detectable inside the home under conditions of normal residential use.

(A) If a sewer gas odor is detected inside the home under conditions of normal residential use, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall keep plumbing traps filled with water.

(2) A vent stack shall be free from blockage and shall allow odor to exit the home. If a vent stack fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A water pipe shall not make excessive noise such as banging or hammering repeatedly.

(A) If a water pipe fails to meet the standard stated in paragraph (3) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) A water pipe subject to expansion or contraction of the pipe as warm or cool water flows through the pipe may cause a "ticking" sound temporarily. The standard stated in paragraph (3) of this subsection does not require a builder to remove all noise attributable to water flow and pipe expansion.

§304.23.Performance Standards for Heating, Cooling and Ventilation.

(a) Performance Standards for Heating and Cooling.

(1) A condensation line shall not be obstructed due to construction activities.

(A) If a condensation line fails to meet the standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall periodically check for the free flow of condensate (water) from the line and clear the line when necessary.

(2) A drip pan and drain line shall be installed under a horizontal air handler as per the Code.

(A) If a drip pan and drain line fails to meet the standard stated in paragraph (2) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall periodically check for the free flow of condensate (water) from the line and clear the line when necessary.

(3) Insulation shall completely encase the refrigerant line according to Code.

(A) If the refrigerant line insulation fails to meet the standard stated in paragraph (3) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall ensure that insulation on the refrigerant line is not damaged or cut due to home maintenance or landscape work.

(4) An exterior compressor unit shall be installed on a stable pad that supports the unit and is no more than one inch out of level. The bottom of the exterior compressor unit support shall not be below ground level.

(A) If an exterior compressor unit pad or support fails to meet the standards stated in paragraph (4) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall ensure that settlement of the exterior compressor unit pad does not occur due to home maintenance, landscape work or excessive water from irrigation.

(b) Performance Standards for Venting.

(1) An appliance shall be vented according to the manufacturer’s specifications. If an appliance is not vented in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) Back draft dampers shall be installed and function according to the manufacturer’s specifications. If back draft dampers fail to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(c) Performance Standards for Ductwork. Ductwork shall not make excessive noise.

(1) If the ductwork fails to meet the standard stated in of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The flow of air, including its velocity, or the expansion of ductwork from heating and cooling may cause "ticking" or "crackling" sounds.

(3) The homeowner shall not place any object on the ductwork.

§304.24.Performance Standards for Electrical Systems and Fixtures.

(a) Excessive air infiltration shall not occur around electrical system components or fixtures. If electrical system components or fixtures fail to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(b) A fixture or trim plate shall not be chipped, cracked, dented or scratched due to construction activities. If a fixture or trim plate fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(c) A fixture or trim plate finish shall not be tarnished, blemished or stained due to construction activities. If a fixture or trim fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(d) A fixture, electrical box or trim plate shall be installed in accordance with the Code and shall be plumb and level. If a fixture, electrical box or trim plate fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(e) Fixtures, such as lights, fans and appliances shall operate properly when installed in accordance with the manufacturer’s specifications. The builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(f) A smoke detector shall operate according to the manufacturer's specifications and shall be installed in accordance with the Code. If a smoke detector fails to meet the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(g) An exhaust fan shall operate within the manufacturer’s specified noise level. If an exhaust fan fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.25.Performance Standards for Interior Trim.

(a) Performance Standards for Trim.

(1) An interior trim joint separation shall not equal or exceed 1/8 of an inch in width and all joints shall be caulked or puttied. If an interior trim joint fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The interior trim shall not have surface damage, such as scratches, chips, dents, gouges, splits, cracks, warping or cupping that is visible from a distance of six feet or more in normal light due to construction activities. If the interior trim fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A hammer mark on trim shall not be visible from a distance of six feet or more when viewed in normal light. If the interior trim fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) A nail or nail hole in interior trim shall not be visible from a distance of six feet or more when viewed in normal light. If the interior trim fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Shelving. Shelving, rods and end supports shall be installed in accordance with the measurements stated in this subsection. The length of a closet rod shall not be shorter than the actual distance between the end supports in an amount equal to or exceeding 1/4 of an inch and shall be supported by stud-mounted brackets no more than four feet apart. The length of a shelf shall not be shorter than the actual distance between the supporting walls by an amount equal to or exceeding 1/4 of an inch and shall be supported by stud-mounted brackets no more than four feet apart. End supports shall be securely mounted. If the closet rods, shelving or end supports fail to meet the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.26.Performance Standards for Mirrors, Interior Glass and Shower Doors.

(a) A mirror, interior glass or shower door shall not be loose and shall be securely mounted or attached to the supporting surface. Fixtures, such as towel bars or door handles, shall be securely mounted. If a mirror, interior glass, shower door, fixture or component fails to meet the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(b) A mirror, interior glass or shower door shall not be damaged due to construction activities. If a mirror, interior glass or shower door fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) A shower door shall not leak. If a shower door fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(d) Imperfections in a mirror or shower door shall not be visible from a distance of two feet or more when viewed in normal light. If a mirror or shower door fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(e) When opening and closing, a shower door shall operate easily and smoothly without requiring excessive pressure. If a shower door fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.27.Performance Standards for Hardware and Ironwork.

(a) Performance Standards for Hardware.

(1) Hardware finishes shall not be tarnished, blemished, corroded or stained due to construction activities, unless the finish is installed as a specialty feature.

(A) If the hardware finish fails to meet the standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The builder is not responsible for tarnished, blemished, or stained hardware finishes that have been damaged by factors that are beyond the manufacturer’s or the builder’s control such as the homeowner’s use of abrasive pads or cleaners, harsh chemicals, alcohol, organic solvents or deterioration caused by exposure to outdoor elements such as salt air or humidity.

(2) Hardware shall function properly, without catching binding or requiring excessive force to operate. If hardware fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Hardware shall not be scratched, chipped, cracked or dented due to construction activities. If hardware fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) Hardware shall be installed securely and shall not be loose.

(A) If hardware fails to meet the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) The homeowner shall not exert excessive force on hardware.

(b) Performance Standards for Interior Ironwork.

(1) Interior ironwork shall not rust.

(2) If interior ironwork fails to meet the standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(3) The builder is not responsible for ironwork finishes that rust due to factors that are beyond the manufacturer’s or the builder’s control such as the homeowner’s use of abrasive pads or cleaners, harsh chemicals, alcohol, organic solvents or deterioration caused by exposure to humidity.

§304.28.Performance Standards for Countertops and Backsplashes.

(a) Performance Standards for Countertops and Backsplashes Generally.

(1) A countertop or backsplash shall be secured to substrate in accordance with manufacturer’s specifications. If countertop or backsplash materials are not secured to the substrate in accordance with the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) For non-laminate countertops and backsplashes, the joints between countertop surfaces, between the countertop surface and the backsplash or side-splash and between adjoining backsplash panels may be visible, but shall not separate. If joints between non-laminate surfaces fail to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) Countertops shall be level to within 1/4 of an inch in any six-foot measurement. If a countertop surface fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(4) A countertop surface or edge shall not be damaged, broken, chipped or cracked due to construction activities. If a countertop surface or edge fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(5) A countertop shall not bow or warp in an amount equal to or exceeding 1/16 of an inch per lineal foot. If a countertop fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(b) Performance Standards for Laminate Countertops and Backsplashes.

(1) Laminate countertops and backsplashes shall not delaminate and shall remain securely attached to the substrate. Delamination is the separation of the finish surface veneer from the substrate material. If a countertop fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(2) A seam in a laminate countertop or backsplash may be visible but shall not be separated or displaced. If a laminate countertop or backsplash fails to meet the standard stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(3) A surface imperfection in a laminate countertop or a backsplash shall not be visible from a distance of three feet or more when viewed in normal light due to construction activities. If a laminate surface fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

§304.29.Performance Standards for Fireplaces.

(a) A refractory panel shall not crack or separate.

(1) If the fireplace refractory panel fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The homeowner shall not use synthetic logs or other materials if not approved by the manufacturer.

(b) A fireplace door shall operate properly. Fireplace doors shall meet evenly and shall not be out of alignment from one another in an amount equal to or exceeding 1/8 of an inch in any direction. If a fireplace door fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) A fireplace shall not have a gas leak. If a fireplace has a gas leak, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(d) Gas logs shall be positioned in accordance with the manufacturer’s specifications.

(1) If a gas log fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The homeowner shall not incorrectly reposition or relocate the logs after the original placement. The homeowner shall not place the logs in a manner that does not allow the flame to flow through the logs according to the manufacturer’s specifications.

(e) A crack in masonry hearth or facing shall not be equal to or exceed 1/4 of an inch in width. If the masonry hearth or facing of the fireplace fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(f) A fireplace or chimney shall draw properly. If a fireplace or chimney fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(g) A firebox shall not have excessive water infiltration under normal weather conditions. If a firebox fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(h) A fireplace fan shall not exceed the noise level established by the manufacturer’s specifications. If a fireplace fan fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.30.Performance Standards for Irrigation Systems.

(a) An irrigation system shall not leak, break or clog due to construction activities. If an irrigation system fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(b) An irrigation system shall be installed such that sprinkler coverage shall be complete and water shall not spray an unintended area due to construction activities. If an irrigation system fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) The irrigation system control shall operate in accordance with manufacturer’s specifications.

(1) If an irrigation system fails to operate in accordance with manufacturer’s specifications, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(2) The builder shall provide the homeowner with instructions on the operation of the irrigation system at closing.

§304.31.Performance Standards for Fencing.

(a) A fence shall not fall over and shall not lean in excess of two inches out of plumb due to construction activities. If the fencing fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(b) A wood fence board shall not be broken due to construction activities. Wood fence board shall not become detached from the fence due to construction activities of the builder. If the fencing fails to meet the standards stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(c) A masonry unit or mortar in a fence shall not be broken or loose. A crack in a masonry unit shall not occur. A crack in the mortar shall not equal or exceed 1/8 of an inch in width. If a masonry unit or mortar in a fence fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(d) A masonry wall shall have adequate weep holes in the lowest course as required by the Code to allow seepage to pass through the wall. If a masonry retaining wall fails to meet the standards of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.32.Performance Standards for Yard Grading.

(a) Yards shall have grades and swales that provide for proper drainage away from the home in accordance with the Code or other governmental regulations.

(1) If the grades or swales fail to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(2) The homeowner shall maintain the drainage pattern and protect the grading contours from erosion, blockage, over-saturation or any other changes.

(b) Settling or sinking of soil shall not interfere with the drainage patterns of the lot or have a vertical depth of six inches or more. If the soil fails to meet the standard stated in this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

§304.33.Performance Standards for Pest Control.

Eave returns, truss blocks, attic vents and roof vent openings shall not allow rodents, birds, and other similar pests into home or attic space. If an eave return, truss block, attic vent or roof vent opening that allows rodents, birds, and other similar pests into home or attic space, the builder shall take such action as is necessary to bring the variance within the standard state in this section.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 31, 2005.

TRD-200500434

Susan Durso

General Counsel

Texas Residential Construction Commission

Effective date: June 1, 2005

Proposal publication date: October 22, 2004

For further information, please call: (512) 475-0595

10 TAC §§304.50 - 304.52

Cross Reference to Statutes: Title 16, Property Code ch. 426 and §§408.001 and 430.001

No other statutes, articles, or codes are affected by the adoption.

§304.50.Performance Standards for Electrical Delivery Systems.

(a) Performance Standards for Electrical Wiring.

(1) Electrical wiring installed inside the home shall be installed in accordance with the Code and any other applicable electrical standards and shall function properly from the point of demarcation, as determined by the respective utility.

(A) If electrical wiring inside the home is not functioning properly or is not installed in accordance with the Code and any other applicable electrical standards, the builder shall take such action as is necessary to bring the wiring to the standard of performance required in paragraph (1) of this subsection.

(B) The builder shall not be responsible for utility improvements from the meter/demarcation point to the utility poles or the transformer.

(2) Electrical wiring shall be capable of carrying the designated load as set forth in the Code.

(A) If the electrical wiring fails to carry design load, the builder shall take such action as is necessary to bring the variance within the standard set forth in paragraph (2) of this subsection.

(B) All electrical equipment shall be used for the purposes and/or capacities for which it was designed and in accordance with manufacturer’s specifications.

(b) Performance Standards for the Electrical Panel, Breakers and Fuses.

(1) The electrical panel and breakers shall have sufficient capacity to provide electrical service to the home during normal residential usage.

(A) If the electrical panel or breakers do not have sufficient capacity to provide electrical service to the home during normal residential usage, the builder shall take such action as is necessary to bring the variance within the standard set forth in paragraph (1) of this subsection.

(B) The builder is not responsible for electrical service interruptions caused by external conditions such as power surges, circuit overloads and electrical shorts.

(2) The electrical panel and breakers shall have sufficient capacity to provide electrical service to the home during normal residential usage such that a circuit breaker shall not trip and fuses shall not blow repeatedly under normal residential electric usage.

(A) If a circuit breaker repeatedly trips or fuses repeatedly blow under normal residential electric usage, the builder shall take such action as is necessary to bring the variance within the standard set forth in paragraph (2) of this subsection.

(B) The builder is not responsible for circuit breaker trips or blown fuses that have functioned as designed to protect the home from external conditions such as power surges, circuit overloads and shorts.

(c) Performance Standards for Electric Outlets with Ground Fault Interrupters.

(1) Electrical outlets with ground fault interrupters shall be installed and operate in accordance with the Code and manufacturer’s specifications. If ground fault interrupters trip repeatedly under normal residential usage, the builder shall take such action as is necessary to ensure that the electrical outlets with ground fault interrupters are installed in accordance with the Code and manufacturer’s instructions and specifications and that they operate properly during normal residential electrical usage.

(2) The homeowner shall not plug appliances that require constant electrical flow, such as refrigerators and freezers, into an outlet with a ground fault interrupter.

(d) Performance Standards for Fixtures, Outlets, Doorbells and Switches.

(1) An outlet, doorbell or switch shall be installed in accordance with the manufacturer’s specifications and the Code and shall operate properly when installed in accordance with the manufacturer’s specifications and the Code. If an outlet, doorbell or switch is not installed in accordance with the manufacturer’s specifications and the Code or does not operate properly when so installed, the builder shall take such action as is necessary to bring the variance within the standard stated in this subsection.

(2) A fixture, electrical box or trim plate shall be installed in accordance with the Code and manufacturer’s specifications and shall be properly secured to the supporting surface. If a fixture, electrical box or trim plate is not installed in accordance with the Code and manufacturer’s specifications or is not properly secured to the supporting surface, builder shall take such action as is necessary to bring the variance within the standard state in this subsection.

(3) A light shall not dim, flicker or burn out repeatedly under normal circumstances. A lighting circuit shall meet the Code. If a light or a lighting circuit fails to meet the standards stated in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(e) Performance Standards for Wiring or Outlets for Cable Television, Telephone, Ethernet or Other Services.

(1) Wiring or outlets for cable television, telephone, ethernet or other services shall be installed in accordance with the Code and any applicable manufacturer’s specifications.

(A) If wiring or outlets for cable television, telephone, ethernet or other services are not installed in accordance with the Code or any applicable manufacturer’s specifications, the builder shall take such action as is necessary to bring the variance within the standard set forth in paragraph (1) of this subsection.

(B) A builder is not responsible for the failure of wiring or other utility service connectors or conduits that begin before the point at which the service enters the home.

(2) Wiring or outlets for cable television, telephone, ethernet or other services inside the home or on the home side of the meter/demarcation point shall function properly when installed in accordance with the performance standard in paragraph (1) of this subsection.

(A) If wiring or outlets for cable television, telephone, ethernet or other services are not functioning, the builder shall take such action as is necessary to bring the variance within the standard set forth in paragraph (2) of this subsection.

(B) A builder is not responsible for the failure of wiring or other utility service connectors or conduits that begin before the point at which the service enters the home.

§304.51.Performance Standards for Plumbing Delivery Systems.

(a) Performance Standards for Pipes including Water and Gas Pipes, Sewer and Drain Lines, Fittings and Valves but not including pipes included in a Landscape Irrigation System.

(1) Pipes shall be installed and insulated in accordance with the Code and manufacturer’s specifications.

(A) If a water pipe bursts, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (1) of this subsection.

(B) The homeowner is responsible for insulating and protecting exterior pipes and hose bibs from freezing weather and for maintaining a reasonable temperature in the home during periods of extremely cold weather. The homeowner is responsible for maintaining a reasonable internal temperature in a home regardless of whether the home is occupied or unoccupied and for periodically checking to ensure that a reasonable internal temperature is maintained.

(2) A water pipe shall not leak.

(A) If a water pipe is leaking, the builder shall take such action as is necessary to bring the variance within the performance standard stated in paragraph (2) of this subsection.

(B) The homeowner shall shut off water supply immediately if such is required to prevent further damage to the home.

(3) A gas pipe shall not leak, including natural gas, propane or butane gas.

(A) If a gas pipe is leaking, a builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (3) of this subsection.

(B) If a gas pipe is leaking, the homeowner shall shut off the source of the gas if the homeowner can do so safely.

(4) Water pressure shall not exceed 80 pounds per square inch in any part of the water supply system located inside the home. Minimum static pressure at the building entrance for either public or private water service shall be 40 pounds per square inch in any part of the water supply system.

(A) This standard assumes the public or community water supply reaches the home side of the meter at 40 pounds per square inch. The builder is not responsible for water pressure variations originating from the water supply source.

(B) If the water pressure is excessively high, the builder shall take such action as is necessary to bring the variance within the standard stated in paragraph (4) of this subsection.

(5) A sewer, drain, or waste pipe shall not become clogged or stopped up due to construction activities.

(A) The builder shall take such action as is necessary to unclog a sewer, drain or waste pipe that is clogged or stopped up due to construction activities.

(B) The homeowner shall shut off water supply immediately if such is required to prevent damage to the home.

(b) Performance Standards for Individual Wastewater Treatment Systems. A wastewater treatment system should be capable of properly handling normal flow of household effluent in accordance with the Texas Commission on Environmental Quality requirements.

(1) The builder shall take such action as is necessary for the wastewater treatment system to perform within the standard stated in this subsection.

(2) The builder is not responsible for:

(A) system malfunctions or damage due to the addition of a fixture, equipment, appliance or other source of waste or water into the septic system by a person other than the builder or a person working at the builder’s direction; or

(B) malfunctions or limitations in the operation of the system attributed to a design restriction imposed by state, county or local governing agencies; or

(C) malfunctions caused by freezing, soil saturation, soil conditions, changes in ground water table or any other acts of nature.

§304.52.Performance Standards for Heating, Air Conditioning and Ventilation Delivery Systems.

(a) A refrigerant line shall not leak.

(1) If a refrigerant line leaks, the builder shall take such action as is necessary to bring the variance within the standard stated in subsection (a) of this section.

(2) Condensation on a refrigerant line is not a leak.

(b) Performance Standards for Heating and Cooling Functions.

(1) A heating system shall produce an inside temperature of at least 68-degrees Fahrenheit as measured two feet from the outside wall of a room at a height of three feet above the floor under local outdoor winter design conditions as specified in the Code.

(A) If a heating system fails to perform to the standard stated in paragraph (1) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) Temperatures may vary up to 4-degrees Fahrenheit between rooms but no less than the standard set forth above in paragraph (1) of this subsection. The homeowner’s changes made to the size or configuration of the home, the heating system or the ductwork shall negate the builder’s responsibility to take measures to meet this performance standard.

(2) An air-conditioner system shall produce an inside temperature of at most 78-degrees Fahrenheit as measured in the center of a room at height of five feet above the floor, under local outdoor summer design conditions as specified in the Code.

(A) If the air-conditioner system fails to perform to the standard stated in paragraph (2) of this subsection, the builder shall take such action as is necessary to bring the variance within the standard.

(B) This standard does not apply to evaporative or other alternative cooling systems or if the homeowner makes changes to the size or configuration of the home, the air-conditioning system or the ductwork. Internal temperatures may vary up to 4-degrees Fahrenheit between rooms but no more than the standard set forth above in paragraph (2) of this subsection.

(3) A thermostat reading shall not differ by more than 4-degrees Fahrenheit from the actual room temperature taken at a height of five feet above the floor in the center of the room where the thermostat is located. The stated performance standard is related to the accuracy of the thermostat and not to the performance standard of the room temperature. If the thermostat reading differs more than 4-degrees Fahrenheit from the actual room temperature taken at a height of five feet above the floor in the center of the room where the thermostat is located, the builder shall take such action as is necessary to bring the variance within the standard.

(4) Heating and cooling equipment shall be installed and secured according to the manufacturer’s instructions and specification and shall not move excessively. If the heating or cooling equipment is not installed and secured in accordance with manufacturer’s instructions and specifications or moves excessively, the builder shall take such action as is necessary to properly install and secure the equipment.

(c) Performance Standards for Vents, Grills or Registers.

(1) A vent, grill or register shall operate easily and smoothly when applying normal operating pressure. If a vent, grill or register does not operate easily and smoothly when applying normal pressure when adjusting, the builder shall repair the vent, grill or register so that it operates with ease of use when applying normal operating pressure.

(2) A vent, grill or register shall be installed in accordance with the Code and manufacturer’s instructions and specifications and shall be secured to the underlying surface. If a vent, grill or register is not installed and secured in accordance with the performance standard in this paragraph, the builder shall take such action as is necessary to bring the variance within the standard.

(d) Performance Standards for Ductwork.

(1) Ductwork shall be insulated in unconditioned areas according to Code. If ductwork is not insulated in unconditioned areas in accordance with the Code, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(2) Ductwork shall be secured according to the manufacturer’s instructions and specifications and it shall not move excessively. If the ductwork is not secured according to the manufacturer’s instructions and specifications or moves excessively, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

(3) Ductwork shall be sealed and shall not separate or leak in excess of the standards set by the Code. If the ductwork is not sealed, is separated or leaks in excess of the standards set by the Code, the builder shall take such action as is necessary to bring the variance within the standard stated in this paragraph.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 31, 2005.

TRD-200500435

Susan Durso

General Counsel

Texas Residential Construction Commission

Effective date: June 1, 2005

Proposal publication date: October 22, 2004

For further information, please call: (512) 475-0595

10 TAC §304.100

Cross Reference to Statutes: Title 16, Property Code ch. 426 and §§408.001 and 430.001

No other statutes, articles, or codes are affected by the adoption.

§304.100.Performance Standards for Major Structural Components.

(a) Performance Standards for Slab Foundations.

(1) Slab foundations should not move differentially after they are constructed, such that a tilt or deflection in the slab in excess of the standards defined below arises from post-construction movement. The protocol and standards for evaluating slab foundations shall follow the "Guidelines for the Evaluation and Repair of Residential Foundations" as published by the Texas Section of the American Society of Civil Engineers (2002), hereinafter referred to as the "ASCE Guidelines" with the following modifications:

(A) Overall deflection from the original construction elevations shall be no greater than the overall length over which the deflection occurs divided by 360 (L/360) and must not have more than one associated symptom of distress, as described in Section 5 of the ASCE Guidelines, that results in actual observable physical damage to the home.

(B) The slab shall not deflect after construction in a tilting mode in excess of one percent from the original construction elevations resulting in actual observable physical damage to the components of the home.

(2) If measurements and associated symptoms of distress show that a slab foundation does not meet the deflection or tilt standards stated in paragraph (1) of this subsection, a third-party inspector’s recommendation shall be based on the appropriate remedial measures as described in Section 7 of the ASCE Guidelines.

(b) Performance Standards for Major Structural Components of a Home other than Slab Foundations.

(1) Floor over pier and beam foundations.

(A) A floor over pier and beam foundation shall not deflect more than L/360 from its original construction elevations and have that movement create actual observable physical damage to the components of the home identifiable in Section 5.3 of the ASCE Guidelines.

(B) If a floor over pier and beam foundation deflects more than L/360 from its original construction elevation and the movement has created actual observable physical damage to the components of a home identifiable in Section 5.3 of the ASCE Guidelines, a third-party inspector’s recommendation shall be based on applicable remedial measures as described in Section 7 of the ASCE Guidelines.

(2) Structural components.

(A) A defined structural component shall not crack, bow, become distorted or deteriorate, such that it compromises the structural integrity of a home or the performance of a structural system of the home resulting in actual observable physical damage to a component of the home.

(B) If a structural component of a home cracks, bows, is distorted or deteriorates such that it results in actual observable physical damage to a component of the home, the builder shall take such action as is necessary to repair, reinforce or replace such structural component to restore the structural integrity of the home or the performance of the affected structural system.

(3) Deflected structural components.

(A) A structural component shall not deflect more than the ratios allowed by the Code.

(B) If a structural component of the home is deflected more than the ratios allowed by the Code, the builder shall to repair, reinforce or replace such structural component to restore the structural integrity of the home or the performance of the affected structural system.

(4) Damaged structural components.

(A) A structural component shall not be so damaged that it compromises the structural integrity or performance of the affected structural system.

(B) If a structural component is so damaged that it compromises the structural integrity or performance of a structural system of the home, the builder shall take such action as is necessary to repair, reinforce or replace such structural component to restore the structural integrity of the home or the performance of the affected structural system.

(5) Separated structural components.

(A) A structural component shall not separate from a supporting member more than 3/4 of an inch or such that it compromises the structural integrity or performance of the system.

(B) If a structural component is separated from a supporting member more than 3/4 of an inch or separated such that it compromises the structural integrity or performance of a structural system of the home, the builder shall take such action as necessary to repair, reinforce or replace such structural component to re-establish the connection between the structural component and the supporting member, to restore the structural integrity of the home and the performance of the affected structural system.

(6) Non-performing structural components.

(A) A structural component shall function as required by the Code.

(B) If a structural component does not function as required by the Code, the builder shall take such action as is necessary to bring the variance within the standard stated in subparagraph (A) of this paragraph.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 31, 2005.

TRD-200500436

Susan Durso

General Counsel

Texas Residential Construction Commission

Effective date: June 1, 2005

Proposal publication date: October 22, 2004

For further information, please call: (512) 475-0595