In Texas, most builders have you sign their own purchase contract instead of a Texas Real Estate Commission (TREC) form, and TREC rules allow that when the owner prepares or requires the form. Before you sign, check how the contract handles your deposit, the completion date and delays, change orders and allowances, your right to inspect, warranties, and how disputes are resolved. Comparing it to TREC’s own New Home Contract shows you what’s missing.
Brock Bremmer | U.S. Air Force Reserves Veteran | Real Estate Agent | eXp Realty | San Antonio Metro Area
New Construction Specialist
Also see: Can You Get Your Earnest Money Back in Texas? | What a New Construction Warranty Covers | Inspections on New Construction
Why Don’t Builders Use the TREC Contract?
TREC requires license holders to use its promulgated forms. The rule, 22 Texas Administrative Code §537.11, lists exceptions, including a form prepared by the property owner or by an attorney and required by the owner. A builder selling its own homes is the owner, so it can require its own contract. Expect a document written mainly to protect the builder.
TREC’s benchmark forms are the New Home Contract (Incomplete Construction), Form 23-20, and the New Home Contract (Completed Construction), Form 24-20, both effective July 1, 2026. Even if your builder never uses them, Form 23-20 is a good checklist for what a fair contract covers.
What Does TREC’s New Home Contract Cover That You Should Compare?
| Topic | TREC Form 23-20 (Incomplete Construction) | What to look for in the builder’s contract |
| Construction documents | Plans, specifications, finish schedules, change orders, and allowances make up the construction documents (Para. 7B) | Are your plan, elevation, and selections attached or referenced? |
| Change orders and allowances | Changes must be in writing. You pay any cost above an allowance, and savings below it reduce the price (Para. 7C) | Markups, non-refundable change-order deposits, and cutoff dates |
| Selections deadline | Buyer makes selections within a set number of days (Para. 7D) | What happens if you miss the deadline: does the builder choose for you? |
| Start and completion | Construction starts within a set number of days. Delays from weather, strikes, or unavailable materials extend completion, but never past the closing date (Para. 7E) | An open-ended estimated completion date with no outside deadline |
| Access and inspections | Buyer may access the property and hire TREC-licensed inspectors (Para. 7A) | Whether you get pre-drywall and final inspections, and how much notice you must give |
| Warranties | Only the written warranties apply, and manufacturer warranties are assigned to you (Para. 7F) | Which third-party warranty applies and who handles claims |
How Is Your Deposit Handled?
In TREC forms, earnest money goes to a title company as escrow agent. Many builder contracts work differently. Some send part of the deposit straight to the builder, call it non-refundable once construction starts, or treat design-center upgrade payments as separate, non-refundable deposits. Find the clause that says where your money is held and when you can lose it. My guide to getting earnest money back in Texas covers the TREC side.
What Happens if the Build Is Delayed?
The TREC form defines substantial completion as final inspection and approval by government authorities and the lender. It also limits delay extensions to the closing date. Many builder contracts give only an estimated completion date and let the builder extend it. Look for the following:
- Outside date: Is there a firm date, and can you cancel if the builder misses it?
- Rate lock: Is the interest rate lock tied to a date the builder controls?
- Incentive conditions: Does the incentive depend on closing by a certain date, or on using the builder’s lender? See my guide on builder lenders vs. your own lender.
For realistic timelines, read how long it takes to build in San Antonio.
Can the Builder Substitute Materials or Change the Plan?
Even the TREC form lets a seller substitute materials of equal or better quality. Builder contracts often go further and reserve the right to change elevations, lot grading, or “comparable” finishes. Ask how substitutions are defined, and get key selections listed in writing.
How Are Defects and Disputes Handled?
Texas Property Code Chapter 27 sets a notice-and-cure process for construction defect claims. TREC’s form describes it: the buyer sends written notice by certified mail at least 60 days before filing suit or arbitration, and the builder gets a chance to inspect and make an offer to repair. Many builder contracts also require binding arbitration and limit warranties to the written warranty. Read those sections closely, because they affect what you can do later. A real estate attorney can explain the legal effect; your agent can’t give legal advice.
What Other Notices Should Come With the Contract?
- Special districts: TREC publishes Form 59-0, Notice to Purchaser of Special Taxing or Assessment District, and Addendum 53-0 for PID assessments. See PID, MUD, and SID taxes.
- HOA documents: Ask for the HOA documents and dues. Here’s what an HOA resale certificate is.
- Survey and flood information: In the TREC form, the survey is done after substantial completion.
For negotiating before you sign, watch The Truth About Making Offers on New Construction Homes in San Antonio.
Frequently Asked Questions
Do Texas builders have to use the TREC contract?
No. TREC requires license holders to use its forms, but 22 TAC §537.11 allows a form prepared by the property owner, or by an attorney and required by the owner. That’s why most builders use their own purchase agreement.
Can you negotiate a builder’s purchase contract?
Sometimes. Many builders won’t change the contract wording but may negotiate price, incentives, closing-cost credits, or upgrades. Get every promise into the contract or a signed addendum, because many builder contracts say verbal promises don’t count.
Want a Second Set of Eyes on a Builder Contract?
Brock Bremmer with eXp Realty is a U.S. Air Force Reserves veteran with 120+ homes sold across the San Antonio metro and an eXp ICON agent (2023–24). He reviews builder contracts, incentive terms, and timelines with buyers in San Antonio, New Braunfels, and Boerne. Bring him on your first visit to the model.
- 📞 Call or text: 210-501-5088
- 📧 Email: [email protected]
- 📅 Schedule a free consultation
Also see: Quick Move-In vs. Build | The Option Period in Texas | VA Loans on New Construction
Sources: TREC, Contracts and Forms; TREC Form 23-20, New Home Contract (Incomplete Construction); 22 Tex. Admin. Code §537.11; Texas Property Code Chapter 27 (accessed November 3, 2026). This post is general information, not legal advice.