The Sticky Statute of Limitations in NC

sticky notesIf you are not a lawyer, but you play one on TV, you may have a passing understanding of the legal concept of a statute of limitations.  This is post is to provide you just a little more information about the concept, and how it applies to your North Carolina construction project.

What is a statute of limitations, and why is it important?

The Statute of Limitations is a time-barring statute which gives you a set time within which to bring an action (i.e., lawsuit) against another party.  If you do not bring your lawsuit within that period of time, the court will kick it to the curb.  The reasoning behind the statute of limitation (often, ironically, abbreviated as “SOL” in legal circles) is that people need to have some certainty in how long they can be sued for an event that happened in the past.  Witnesses die or forget, papers are destroyed, and in general it is extremely difficult to try a case years after the fact.  The law has, therefore, established a somewhat arbitrary deadline for when you can sue or be sued, and it is vital that you do not go past that deadline if you hope to bring a lawsuit.

What is the statute of limitations on a construction project?

The answer, as always, is:  it depends.  The statue of limitations is governed by whatever state’s law will apply to your case—usually, but not always, the state the project was built in.  The statute of limitations is also determined by what type of lawsuit you are trying to bring (or defend against).

 In North Carolina, the statute of limitations for most construction disputes (breach of contract, professional negligence, implied warranty of plans) is generally 3 years from the date time when you knew or should have known about the issue.   N.C. Gen. Stat §1-52.1  ABL Plumbing and Heating Corp. v.  Bladen Co  Board of Education, N.C. App. 623 S.E.2d 57 (2005). See also AIA A201 para. 13.7.   As always, there are exceptions.  If a contract is “under seal”, a claim can be brought for up to 10 years. (N.C. Gen. Stat. §1-47).

 If the contract involves merchandise and falls under the Uniform Commercial Code, the statute of limitations is 4 years. N.C. Gen. Stat §25-2-725.  However, where a defect in merchandise results in bodily injury or damage to real property, the shorter 3 year statute still applies.  Hanover Ins Co. v. Amana Refrigeration, Inc., 106 N.C. App. 79, 415 S.E.2d 99 (1992). In Hanover, a defective HVAC unit caused a fire, which destroyed a building. The court held that the shorter 3 year statute of limitations applied because the defective merchandise caused damage to the real property.

Therefore, it is best practice to assume that the Courts will find that the statute starts running at the first inkling of a problem, and bring your action accordingly. Also, regardless of the length of any warranty period, contractors can still be liable until the statute of limitations period expires.

What happens to claims after the owner accepts the project?

Once a project has been accepted by an owner, the owner waives his right to claim damages for all but latent defects. Acceptance by the owner with knowledge of a defective performance may be deemed a waiver of the defective performance.

Where, however, the defect is unknown (or “latent”), the owner’s acceptance does not waive the defective performance. Tisdale v. Elliott, 13 N.C. App. 598, 186 S.E.2d 685 (1972).   If a defect is a “latent” defect, hidden or not readily discoverable, the statute of limitations starts running from the date of discovery. Under AIA A201 para 13.7, any statute of limitations is deemed to have accrued in any and all events not later than the date of Substantial Completion.   This section may shorten the statute of limitations in some cases of latent defects.

Can the Statute of Limitations be lengthened or shortened?

Yes.  But, as they say on television, “don’t try this at home.”  Carefully drafted agreements for a shorter or longer period of time can be executed.  Consult your attorney before you do so, however.  You may also want to check with your insurance carrier to make sure you have sufficient insurance coverage for a longer warranty period.

What if the parties are working together to fix construction problems?

If the parties are working to fix problems, but the statute of limitations is fast approaching– run, don’t walk, to your attorney to discuss a tolling agreement to stop the running of the statute, or otherwise enter into legally enforceable agreements concerning the statute of limitations.  Just because the parties are all working together to solve a construction issue now doesn’t mean that the finger-pointing won’t begin once the bill is presented.

Have a question about the statute of limitations?

Comment below, drop me an email, or find me on twitter @melissabrumback .

_______________________

Photo (Public Domain):  “brightly coloured sticky notes and tags” by Adrian van Leen via OpenPhoto.


Add a comment »56 comments to this article

  1. I signed pool contract last July 2013, but pool financing was disapproved. I received verbal assurance contract was voided and my deposit check was never cashed and presumed destroyed. I canx payment on it anyway to be safe. I recently revisited the pool idea and had the old contract (previous signed contract), revise initial pool estimate. I informed them that I was seeking other estimates and that I would make a decision based on the best proposal. I selected another company and when I notified the other proprosal vendors, they are insisting that I am still under contract with them from the previous year. I have already signed contracts and made deposit with the new vendor and find myself in the middle and do not know what options, if any, I have….HELP!!!

    Reply

    • Interesting. The contract that you signed last year probably had some self-limiting language in it where it became void after a certain period of time. Even if it didn’t, the fact that so much time has elapsed shows that the parties intended that the contract be cancelled. Sounds like the company is trying to force you to go with them, but you likely have defenses to their claims. If they try to sue you, give me a ring and we can discuss.

      Reply

  2. We purchased a home in 2010. A few weeks ago a landscape designer noticed our 150 retaining wall is failing. We learned the previous owner had the wall built by a non-professional post closing with the builder in approx. 2002. We have been quoted 150K to replace the wall. It is so poorly constructed, not engineer certified in cannot be repaired. How bad is this is for us?

    Reply

    • The statute of limitations for the person that did the work has expired. However, you bought a property with certain warranties from the previous owners. You might have a claim against them for breach of certain implied warranties made in the deed. You bought the house over 3 years ago, but arguably it was a latent defect so you may be able to get around that statute. If you want to talk about a possible claim against the former owners let me know.

      Reply

  3. I purchased a home in 11/2009 from the builder. In the last 2 weeks we have found the siding on the home was installed incorrectly. The manufacture of the siding has voided our warranty for improper installation and my homeowners insurance has denied the claim for the same. Builder is still in business, Can I file a claim against him if he is “insured/bonded” or is my only course of action to sue? Any help is greatly appreciated…

    Reply

    • You may be able to do sue the builder, so long as the claim is brought before the 6 year statute of repose has passed. The regular statute of limitations has run, but you may have a case for a latent defect (depending on how observable the defect was). Even though the builder is insured/bonded, you are likely going to have to sue. You can *attempt* to have the builder’s insurance company respond and pay for the defect without litigation, but often it is necessary to bring a lawsuit to get them to the table. Hope that helps. Let me know if you want to talk.

      Reply

  4. I have a question regarding a cut sewer line.
    In 1985 AT&T installed a phone main line behind our house and cut our sewer line. We could not see the damage, as it was underground, and did not KNOW about it till a few weeks ago. I called them the day we discovered the damage. They now are denying the claim basing it on expired statute of limitations. There is a provision allowing for action after said expiration.
    The Discovery Rule
    Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner’s embezzlement might not be noticed for years due to the issuance of false statements of account.
    Would this apply to our situation and what would be our course of action?
    Thank you for any suggestion in advance!

    Reply

    • Kenny:
      Sorry to hear about your sewer line. There is a “discovery” rule, also known as a “latent defect”.

      However, that is still subject to a 6 year outside limit, called the statute of repose. So, it sounds like you are out of luck as to AT&T. Depending on when you bought the house, you could have a claim against the seller (if it was within the last 6 years). You also should report this to your homeowner insurance company as it may be covered under that.

      Reply

  5. We built a custom home in 2007 and closed on the home Dec. 6, 2007. To keep this short and to the point, it has taken 6 years for a stain to show up on the ceiling of our breakfast nook which has been determined to be caused from a defective membrane/bladder under the shower floor (it must have a hole in it). Do you believe that the statute of limitations in NC will protect us?

    Reply

    • You need to act *fast*. Yes, it sounds like you may be okay under the 6 year statute of repose, since the discovery wasn’t until recently. However, based on the above, it looks like Dec 5th of this year will be 6 years, after which you will not be able to file a lawsuit for it. PLEASE see someone ASAP.

      Reply

  6. who is responsible for repairs: I bought a house from a friend who purchased and completed construction of a foreclosed home, windows, lights flooring.The driveway was completed by the original developer, who placed an under-sized drain pipe in a surface water drainage ditch which appeared to be 1-2 ft. wide when I bought the property. Storm water washed away the soil he had hauled in and landscaped around the pipe, to reveal a 6ft .wide creek and created a 12 ft. deep sinkhole,30×40 ft. wide around the driveway. estimated repairs are over $10,000. neither are willing to replace the pipe and the insurance company said I am not covered for flood damage.

    Reply

    • correction of term “creek”, natural water course/water shed, which flows to a nearby creek.

      Reply

    • That depends. Sorry to be so vague, but: did the deed say “as is” when you purchased from your friend? How long ago was the driveway built by the developer (i.e., has the 6 statute of repose run?). If the statute of repose has not run against the developer, and he was negligent, you have a breach of the warranty of habitability (which yes, can apply to later owners) and possibly other claims. Re your friend- it depends on the deed. I’d also not give up on the insurance issue yet– how are they defining it as a flood? Call me if you want to talk further.

      Reply

  7. My husband and I purchase a new home with a closing date of June 1 2010. We found mold under the house in the crawl space the end of August early September 2010, the builder did a complete remediation and cleaned up all the mold. I noticed last summer June 2012 that the crawl space was again wet. After the company built a new house next door and installed the sprinkler system the sprinkler water was reaching all the way to our house and spraying water directly into our crawl space. I had 3 representatives from the company come out look under the house with me and all three assured me it was fine. I asked my husband to go under the house last month and check for mold and indeed mold was growing again. The builder removed all the infested insulation but now my hardwoods are all buckled because it is so moist under the house. My main question is …..does the 3 year time limit start now for statue of limitations or start from the original occurrence of mold. Thanks.

    Reply

    • You have a good argument that the statute starts from the 2012 incident. It sounds like that was a completely new cause of crawl space moisture, yes? Now if I were on the other side I’d try to claim statute of limitations as a defense, but I think you have a good chance of surviving such a defense if the facts are as you present them.

      Reply

  8. my house was built in 2002. i am the second owner and bought the house in 2011. after getting the house i have found many things that weren’t found by the home inspector. i am in construction so i know what is done right and wrong for the most part. i have found many things like my property not being graded right so water is always sitting at my foundation from my neighbor house that sits 6′ away and has their gutters and ac drains pointed directly at my house. just recently my driveway has started pushing up because of the erosion and water getting underneath, the rock that was put on the front of the house for “siding” did not get tar papered like it should so my windows are leaking and water seeps through the wall to the inside. the rest of the house is vinyl siding. i am assuming it was never inspected or was only checked in certain areas as others were covered due to the fact that under that as sheeting the used a 1/8″ think sheet of paper is what i would call it. its not hard like wood but flimsy and is more like cardboard. and in many places as i was cleaning and repairing siding that was damaged there are gaps where they didn’t over lap as code would require during those years so i can see into my wall. and the areas they overlapped were not to code as well or sealed for that matter, this is the same material they used under the rock siding causing the problems. i have windows that were not secured properly and if you lean on them they will fall out, and on top of that were never sealed so there is a draft and they leak. this is just a few things. to make a long story short i am figuring the statue has run out, but is there any kind of legal recourse i have to sue the contractor or county for approving such blatant code violations, or the use of inferior building material, etc? if not, also what kind of recourse do i have if talking to my neighbor about the water run off can i have if he is unwilling to help which im sure he wont. its my understanding that its not okay for this to happen. thanks for the help.

    Reply

    • Yes, the statute of repose has run on the builder (assuming you are in NC). Re your neighbor’s water, however, you might have a cause of action there in that he is interrupting the “natural” flow/drain of the water. He should definitely re-direct the water away from your house, and you may have a case for damages to your property from his water discharge. It’s a tough case to sue any governmental entity for code/inspection issues due to governmental immunity issues.

      Reply

  9. I am a contractor and not been fully paid for work completed on a project completed in early Feb. when is it too late to file a lien against my customer’s property?

    Reply

    • In North Carolina, you have to file a notice of lien within 120 days of the last date of service, and then perfect the lien within 180 days of the last date of service. See more here.

      Reply

  10. As the result of straightline winds during a summer storm in 2011, we had aprox. 93 tons of oak tree fall through our home; nearly ripping it in half lengthwise. We hired a general contractor to perform the $90,000+ in repairs (the GC was a “preferred vendor” with our home owners ins.). Nearly a year later in 2012, the repairs were complete and we moved back into our home. Since that time, we have begun to notice a variety of quality and workmanship issues throughout the home, including shoddy plumbing and electrical work (the kitchen sink plumbing literally fell off underneath, the main sewage line from the house backed up into our bathtubs, electical circuits “buzz” occasionally, etc), inferior paint quality on the interior (not to mention the wrong colors and sheens), the re-use of damaged materials, and most recently, an HVAC system that does not cool. The HVAC system was replaced entirely and the new system is of a much-lower quality than the original system…and they didn’t install the under-cabinet ducting to vent the air. The HVAC installer refuses to even come out and look at the unit and from what I’ve read, the warranty is null.

    The contractual agreement between the GC, myself, and the insurance company stated that the repairs would be made to pre-damage standards or better. Our home was of much higher quality components and construction prior to the damage and prior to the GC’s work. He hid his lack of skill well, though. As I said, we are just now starting to experience the effects of his shoddy workmanship and finding more and more issues as time moves on.

    Because the home was supposed to be repaired to a condition that is “as good or better” than pre-damage; do we have a legal right to hold the general contractor accountable for his improper repairs and replacement components?

    Thank you in advance; your previous comments have been helpful as well.

    Location: Charlotte, Mecklenburg County, NC

    Reply

    • Hi Patrick. Yes, if the “better than” language was in the GC’s contract, then he is required to live up to that standard. But even without that language, what you are describing sounds like poor workmanship. GCs have an obligation to meet a reasonable standard of care, consistent with industry standard. It is not a perfection standard, but if it is as poor as you describe, he’s probably violated that and can be sued on those grounds as well.

      Reply

  11. My house was built in 2006 , used as a model until 2008 and I am the second owner. I purchased in 2012. I did not have a home inspection. When I replaced the carpet and moved a shower, a crack in the slab the entire width of the house was discovered. There is ( and was) also a crack across the front porch that was obvious when I purchased the house. Do I have any recourse on the builder? I believe the company is out of business, but do contractor’s in NC carry completed operations insurance?

    I live in Mecklenburg county.

    Reply

    • I believe you likely have a statute of limitations and statute of repose problem. Even going from the 2008 date, you are more than 3 years out. Unless you can prove fraud (i.e., they covered up the crack on purpose), you are probably not going to be able to recover. It is possible that a contractor had completed operations insurance, but you likely are time-barred there as well. Couldn’t hurt to look into it, but that’s my initial reaction.

      Reply

  12. I purchased a home in may 2011. We have several issues with the home. The home has wood floors which are starting to warp, cup, and crack. I have never seen wood floors do this and our home builder is stating this is normal. I have had a few companies come out to look at the issue and they are stating that this appears to be an issue due to a very damp crawl space where moisture is being pulled up from the crawl space. Wood floor contractors have indicated that my only solutions are to seal the crawl space and replace the wood floors. These items will cost us near $30 thousand. Should I contact our home owners insurance company at this point? Another issue is that the floor is settling in multiple locations and separating from the base boards the gaps appear to be significant. I can see in multiple spots where the home builder had injected caulk due to this settling and now it is getting much worse in other spots throughout the home.

    Reply

    • Ted:
      Thanks for your inquiry. It sounds like you may have a construction labor or construction materials issue, but certain cracking can be normal. It depends really on the nature, number, and severity. It’s certainly worth asking your homeowners insurance agent about whether or not such is covered. If it is, that is the simplest method to pursue. Otherwise, you’ll need to sue the builder within the appropriate statute of limitations and repose. Let me know if we can help.

      Reply

  13. My fiancee and I purchased a home (at the top of a hill) in 2008. We brought in our own inspectors who found a list of problems which needed to be corrected. One of the corrections was to dig about 4 inches of dirt from the back corner of the foundation. Apparently there has to be a certin amount of the foundation showing. When we did that they noticed some cracks in the foundation which they said were not a big deal. We ended up taking the company we purchased the home from to court and won about $30,000 because we found out soon after moving in the plumbing was draining right under the home, not to the sewer/water lines, there was very limited wiring and what was there was extreemly out of date.We won the lawsuit and figured the problems were over. Exactly 5 years to the date of moving in the house (from another state) the foundation in the front corner caved in. The insurance company says they wont repair it cause it’s caused by roots. (Keeping in mind there were cracks found in the back corner where there are no trees/roots, my fiancee is an arborist) We called in a structural engineer and a geiogolist who believe the house has been in danger for a LONG time and someone should have caught this before allowing the sale. They dug 8 holes around my home and found it was not even on a proper foundation. It’s sitting on an upside down triangle of concrete. They took 12 bags full of samples and we should find out soon if we were correct that the home is basically falling down the hill. From what I hear the statue of limitations is 3 years in NC but this was known to have a issue (the cracks they found) but we were told it was safe. Do we still have a case?

    Reply

    • You *may* still have a case, depending on whether the court decides that the structural issues were latent defects. If so, then the statute does not start to run until the date of discovery/date you should have discovered the issues. The fact that there was cracking could be determinative, but it’s not clear cut either way so certainly worth looking at in depth.

      Reply

  14. I built a home 2.5 years ago and did not use a builder. I researched the steps, interviewed contractors and did it myself. I recently had a leak on the second floor which caused some sheet rock damage on the first floor. The leak was a faulty toilet. Does the plumber have any responsibility to us for these damages. Thanks

    Reply

    • If the plumber installed a leaky toilet, then he is negligent. If it was under 3 years ago, then you don’t appear to have a statute of limitations issue. Be sure, however, to start litigation before the 3 years is up. (There might be some latent defect arguments available if you did so, but better safe than sorry). Let me know if I can help.

      Reply

      • Thank you so much for your time. Lori

        Reply

  15. Being sued for breach of contract case for personal guaranty agreement with bank, borrower defaults, bank forecloses and sues for deficiency after forclosure – SOL runs from last payment on orignial note (more than three years ago) or date of foreclosure (just under three years ago),can you give me statute

    Reply

    • Suzanne:
      There is a 10 year statute of limitations for foreclosure sales in N.C.Gen. Stat. § 1-47.

      Reply

  16. Hello,

    I have a contract dispute with a contractor in NC.

    I knew there was some problems with trim not being finished but a very serious out of state family emergency kept me from going after the contractor at the time.

    It is now almost four years since the work was performed but I learned in the past three months that I have water and structural damage that I did not know about prior.

    I want to sue but have been told by two attorneys that I missed the 3 year statute of limitations. Others advise that the statute is three years from when the problem is discovered and the NC Licensing Board of General Contractors state that the statute is 6 years.

    What’s the answer, please?

    Thank you so much.

    JJ

    Reply

    • JJ:

      Thanks for your comment. On the trim issue, the statute of limitations (3 years) would apply, so you can’t recover there. However, with regard to the water/structural damage, the 3 year statute of limitations would not *start* to run until such time as you reasonably knew/should have known of the problem. I’m assuming, for this situation, that these are “latent” or hidden defects that were not obvious prior to 3 months ago. If that assumption is correct, then the statute doesn’t start until the problem becomes apparent.

      The statute of repose ( 6 years) is different than the statute of limitations. It is a harder line to get past, but it sounds like you don’t have that issue if the work was done 4 years ago.

      Therefore, while the contractor will likely assert statute of limitations as a defense, it is still likely that you can get a recovery for the water/structural issues if they were indeed latent defects.

      Give me a call or email if you want to talk further.

      Reply

  17. Latent Defects- extending your liability
  18. We as new shareholders in a company based in NC in Feb 2009 only to discover that the previous President of the comapny was invovled in stealing of customer checks and depositing into a phoney bank account which he opened with a bank in NC . The stealing commenced in July 2003 but the mattter came to light in Feb 2009 when we took over the operations of the company

    Obviously the bank is liable for wronfully conversion of checks .In its defence the bank is claiming Statutory of limitation as a defence . As mentioned we only came to know of the theft in Feb 2009 . We would not have known about the fruad prior to Feb 2009

    Your advice please

    Reply

    • Kishore: I am sorry to hear of your troubles. As a general rule, however, if the fraud was concealed, then the statute should not start running until after its discovery. I cannot answer more than that based on the facts you’ve given me. If you would like to make an appointment to discuss the matter further, give me a call at 919-881-2214.

      Reply

  19. I apoligize, occupany began on April 11, 2010

    Reply

    • Marlena:

      In part, it depends on what the Builder’s Warranty language says, specifically. However, in general you have three years (in NC) from substantial completion to bring a breach of contract claim. It is definitely worth fighting over.

      Reply

  20. I did a loan closing on my first homn in February 2010. I purchased a manufactured modular home where over 80% was done with the manufacturer and about 20% done on site. The home had a one-year builers warranty that expire roughly February/March 2011. Due to the loss of my fiance, I did not begin occupancy until April 11, 2011. In April 2011 I started experincing shingles sliding on the roof. I thought it was due to high winds. This caused some water leakage on the ceiling. I have experienced this twice with no high winds. I noticed a pattern where the shingles were sliding along the front-side of the home. I had never been able to get in the attic due to no stairs. I borrowed a ladder and began to research the water leaks and missing shingles. I discovered a gap between the plywood and this was the source of my leaking problem. The leaks wasnt massive, but steady. The gap was not visible or noticeably discoverable. A small piece of boarding was placed to try to conceal the gap. Am I stuck with handling this problem since the one-year warranty expired or do I have a general case possibly with the manufacturer?

    Reply

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  22. I purchased a new construction home in 2008. Had issues with water pooling around the foundation of the house. Builder was notified and installed a french drain. Problems did not go away. Several months later found a massive leak under concrete slab foundation. Builder came out and fixed leak but was negligent to the damages done to hardwood floors due to water leaking through concrete. Only when the insurance company got involved did he agree to repair floors. Had floors repaired and three weeks later had water damage reappear through the hard wood floors. Had thermal camera take images and found a signicant amount of water coming through floors. I am exhausted with this problem and really could use some advice on how to proceed. Any advice would be greatly appreciated.

    Reply

    • Matt:

      Sorry to hear of your water issues. Give me a ring to discuss. 919-881-2214. Sounds like you have vialbe claims.

      Reply

  23. We own a swimming pool company.We built a pool for a customer about 2.5 years ago.Since then the customer had a crack that appeared in the deck about a year after we did the job.We went back out and fixed it , the same crack reappeared a year later.I told the customer that the warranty was up that that crack was due to ground settlement which our contract limited warranty stated.I feel the crack came from large concrete columns that the customer installed after we built the pool.We have now been served a letter by these customers lawyers claiming that what we did was neglient.Do you think we can successfully fight this?

    Reply

    • Evan:

      Thanks for your comment. Obviously, it is hard to state with any certainty the liklihood of success without knowing all of the details. (And even then, anything that goes to a jury is a wild card!). While your warranty may have expired, you may be looking at a negligligence claim, which would still fall within the 3 year SOL. However, if the customers’ work on the site caused the damage, and you can prove that (usually through expert investigation), then you should have a good defense to a claim. Give me a call (919-881-2214) if you want to discuss further. Good luck.

      Reply

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  25. Can you tell me about the statute of limitations in NC for a home inspection company? We bought our home (built in 1897) in 2003. The inspection company was extremely thorough with one major exception. Our entire upstairs floor was not stable. We didn’t notice the problem until 2 years ago when we had a baby and tried to put his nursery upstairs. Before then we lived downstairs on a day to day basis – the only exception being holidays when we would bring down decorations. The upstairs only contained spare bedrooms. We paid nearly $7000 last year to replace the flooring (sub floor and all). Thanks for your help!

    Reply

    • Kelly:

      Thanks for your comment. I’m sorry to hear of your situation– sounds like the inspector really missed a big item! The statute of limitations would be the same- 3 years from when you knew or should have known about the problem. Unfortunately, the statute of repose may be an issue for you, in that the work was done more than 6 years ago. You may still have a claim against the inspector depending on whether a court would view (1) his work as relating to the property enough to be subject to the repose statute and (2) when you reasonably should have learned of the defect. You may also have claims against whoever sold you the home. If you’d like to talk further, give me a call. [As always, I can only offer general information based on many assumptions here on the blog, and cannot give legal advice here]

      Reply

  26. Have you heard of a NC construction statute concerning a situation where a client has an idea that probably won’t work, so the contractor makes them sign a waiver and informs them that it may not work but if it fails the contractor is liable anyway. Possibly on the basis that the contractor should not have taken the job because in his professional knowledge he know the chances of success were to low.

    Reply

    • Benton:
      Thanks for your comment. Not sure of a specific statute on this, although contractors, designers, and others who are licensed have a duty to perform in accordance with how others in their industry/area would perform. (See http://constructionlawnc.com/2010/06/24/standard-of-care/ for example). If the client wants something that violates the standard of care and/or law/Code/regulations, than the professional should inform the client. The standard can, by agreement, be changed, but law/Code/regs cannot and the professional has a duty to abide by them. If it is not a Code issue, then arguably if the client is well informed that the job will likely *not* work, then the professional likely has a valid defense. However, I would never advise the construction professional to rely on such a waiver because it is always subject to challenge.

      Call me if you have further questions.

      Reply

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  29. I enjoyed your reading your analogy of the basic statute of limitations.
    At best the statute of limitations can be a sticky subject in most jurisdictions.
    As a Construction Defect Litigation Specialist for Commercial Insurance Policies I have noticed a trend over the last few years in that the Judges will often remand such statute of limitation arguments back to a jury as a question of fact as to whether or not a statue has tolled. The arguments to prevail on a summary judgement motion from the court have to include clear and convincing evidence as to when a party knew or should have known of the problems in which prompted the claim to begin whith.
    Can you give your opinion on the North Carolina Statute of Repose as it concerns New Construction, Renovations and Improvements to Real Property as to the discovery of latent defects?

    Reply

    • Wayne:
      Thanks for reading and commenting! Yes, most judges in North Carolina are very conservative with the granting of summary judgment on SOL issues or others. I tell clients- it can be done, but it is often an uphill battle.

      Next Thursday I will have a dedicated post to the Statute of Repose, but for a sneak peak: essentially, and in general, 6 years regardless of latentness of the defect.

      Reply

      • I Installed Plumbing In A House In Summer 2006 For All The Water And Drain Pipes In A New Construction Home.WE Set All The Toilets,sinks,and faucet in winter 2007.Homeowner had a leak with a water pipe fitting that was installed and tested in summer of 2006 and passed all local plumbing inspections.Looks Like A Factory Defect With All The Corosion On The Fitting.Where do i stand on this.

        Reply

        • Heath:
          Thanks for your question. If your work was done more than 6 years ago, which it sounds like it was (depending on how you define “winter 2007″), then you should be covered by the Statute of Repose if the work was done in North Carolina. After 6 years, any claim should barred by that statute. (It varies by state). There can be exceptions to this, depending on your particular facts.

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