Is It Too Late to Sue My Home Builder for Construction Defects I Found Years Later?

The effect of statutes of limitations and statutes of repose on construction-defect lawsuits.

Question

About ten years ago, I purchased a home from a development company that was building a new suburban community in my area. I’ve enjoyed the home, especially the wraparound deck, which is perfect for hosting outdoor gatherings.

This summer, though, I noticed that the wood on the deck floors appeared to be buckling. I hired an inspector, who told me that it was constructed improperly, without enough support. Now I’m going to have to pay a contractor to essentially tear it down and build a new one. Can I sue my developer for his faulty construction of the deck ten years ago? Or has too much time gone by?

Answer

Based on these facts, you would most likely want to try to sue your developer for breach of contract. The developer had promised you a house with a deck, thus implying that the deck would be constructed with proper materials in a workmanlike manner.

Your lawsuit would allege, through expert witnesses with a specialty in engineering, that the developer used shoddy materials and/or constructed the deck improperly.

As a potential plaintiff in this litigation, you need to worry about two types of laws that might exist in your state:

  • the statute of limitations, and
  • the statute of repose.

A statute of limitations limits the amount of time during which someone may file suit, based on the basis of the legal claim and when the problem occurred or was discovered. The statute of limitations for a breach of contract tends to range from three years to ten years (states' laws differ on this). You would need to assert that the breach (the construction of the faulty deck) occurred within that time period.

In construction law, however, there is a concept known as a latent defect. This is a construction defect that you could not have reasonably known about within the statutory period.

Here, for example, you might argue that the deck did not noticeably sink into the ground until a year after the breach of contract limitation period had already expired. This is sometimes known as the “discovery rule,” and courts will sometimes use it to allow a plaintiff to extend a statute of limitations period.

Whether your state’s law contains a statute of repose is the second legal issue to check into. Not all states have a statute of repose. But a statute of repose acts as an absolute block on claims for construction defects beyond a certain number of years. These periods cannot be elongated by the discovery rule, if you find a latent defect. The purpose of these laws is to give legal certainty to contractors and developers.

Here, your construction occurred ten years ago. If, for example, your state’s statute of repose limits damage to eight years, you would likely be precluded from suing your developer.

However, if your state’s statute of repose is 12 years and your state’s statute of limitations is eight years, you might be able to argue for an elongated period under the discovery rule.

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