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.

By , Attorney

One of the attractive features of purchasing a newly built home from a development company is that it will be fresh, clean, up to date, and customized to your tastes and interests. A downside, however, is that construction defects can take years to manifest. Can you sue a developer for faulty construction of that took place many years ago? Or has too much time gone by for a court to accept your case?

Before Suing: Check for Builder's Warranty

Most home builders give new owners a warranty of their work, though time limits are an issue here, too. You'll need to read your sales contract or dig up whatever separate document the builder gave you.

Expect to see a combination of maximum terms for different types of issues. It will likely be broken up, for example, two years' protection for plumbing and electrical defects, ten years for structural defects, and so on.

If You Need to Sue Over Construction Defects, What's the Legal Basis?

In many construction defect cases, the most likely remedy is to sue the developer for breach of contract. Let's say, for example, that the issue is a rotted deck. 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.

Statute of Limitations Might Place a Time Limit on Your Construction Defect Lawsuit

As a potential plaintiff, 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.

Using the deck 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 can use it to allow a plaintiff to extend a statute of limitations period.

Statute of Repose Might Block Claims Beyond a Certain Time 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.

Will Your Builder Actually Pay?

Another important concern is whether your builder's company is still operating, and in a financial condition to make good if you successfully bring a claim. See Suing a Bankrupt Home Builder for Construction Defects for more information.

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