Statute of Repose: Putting your Risk to Bed

Ferret's new hammock

Last week, I discussed the statute of limitations  and how it is generally applied to North Carolina construction projects.  Today, I want to introduce you to another important concept: the statute of repose.

What is the Statute of Repose?

The Statute of Repose is another time-barring statute within which your claim must fit. Like the statute of limitations, it depends on what state’s law will apply to your case, which is usually, but not always, the state where the project is located.

The Statute of Repose, under N.C. Gen. Stat. §1-50(a)(5)(a) provides:

“No action to recover damages based upon or arising out of the defective or unsafe conditions of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.”

When does it run for North Carolina construction projects?

The Statute of Repose in North Carolina for improvements to real property is currently six (6) years from substantial completion or the last specific act or omission of  the defendant, whichever is later. N.C. Gen. Stat. §1-50(a)(5)(a); Nolan v. Paramount Homes, Inc., 135 N.C. App 73, 518 S.E.2d 789 (1999).  Once you have been off of a job for 6 years, you cannot (successfully) be sued for any construction defect, regardless of when the defect was or is discovered.  It is an extreme, bright line bar to any claim after that time; that is, it puts your risk to bed.

How is it different from the Statute of Limitations?

Unlike the Statute of Limitations, the Statute of Repose starts running whether or not you are aware of any defect.  Bryant v. Don Galloway Homes, Inc.,, 147 N.C. App. 655, 556 S.E.2d 597 (2001). This is a double-edged sword—if you are the one whose work is being questioned, you can rest easy that after you have been off of a project for 6 years, no claim can thereafter be (successfully) brought against you.

On the other hand, you are also bound by the repose statute, regardless of any equitable considerations. For example, in Monson v. Paramount Homes, Inc., homeowners sued a general contractor for defective construction, and the contractor brought a third-party action against his subcontractor. The claims against the subcontractor were deemed time-barred under the statute of repose.  133 N.C. App. 235,515 S.E.2d 445 (1999). In Monson, the contractor had to defend the action but had no ability to recover from the subcontractor who actually performed the poor construction.

Does punch list or warranty work extend the Statute of Repose?

In most cases, no.  Once the statute of repose starts to run, it generally cannot be tolled by any subsequent action.  For example, in one case, even when the contractor had performed some punch list work after substantial completion, and even though the architect failed to issue a certificate of substantial completion, the court held that the statute began to run at the date of substantial completion of the contractor’s work.  Mitchell v. Mitchell’s Formal Wear, Inc, 168 N.C. App, 212, 606 S.E.2d 704 (2005).

This is also true if you return to the job for minor warranty type issues during the 6 year period. The statute of limitations is tolled during the repair time, but in general, the statute of repose is not tolled once it begins running. The policy behind this interpretation is that the Statute of Repose is a substantive right designed to limit the potential liability for a set period of time.


Photo “Cama nova do furas / Ferret’s new hammock” by Isa Costa via Flickr via Attribution-NoDerivs 2.0 Generic Creative Commons license.


32 thoughts on “Statute of Repose: Putting your Risk to Bed

  1. Robert Winstead says:

    I have a question regarding roof damage to my house which occurred as a result of faulty installation of a satellite dish by DirecTV.

    The original dish was installed on my roof in roughly 2009, with multiple subsequent service calls due to poor reception. DirecTV relocated the dish to a different location with an entirely new mount about two years ago, but the original mount for the old dish was left on the roof. Note that was not warranty work, but part of my ongoing subscription to DirecTV.Two independent contractors confirmed in writing that water penetration was a result of faulty installation from the old dish. Damage to my roof was only about $1500, so not excessive.

    I filed a damage claim with DirecTV for the amount of the repair and supplied photo’s from the contractors along with the estimates. I had no response from DirecTV for well over 60 days, and the claim was eventually denied after 84 days from the initial filing.

    DirecTV;s response was though they conceded that the water penetration was caused by their satellite installation, and not withstanding that they had made more than one service call over the ten year + period for which I had remained a customer and also paid for a monthly service contract, their liability ended at the six year’s statute of repose from the original installation date, and therefore they had no legal obligation to repair (nor apparently a customer-service obligation.)

    I realize this is a relatively small amount to claim, but how does the statute apply to their response?

    Thank you for your help.

    • Melissa Dewey Brumback says:

      Unfortunately, the statute of repose is a tough nut to crack. You could have *some* legal argument that despite the statute of repose, their continued service calls/repair/relocate efforts served to prevent you from taking action to investigate the damage, and that as such it should be tolled. But it would be a tough argument to make. Have you tried calling out their behavior on twitter or the like? Sometimes companies do the right thing to avoid bad p.r.

  2. Brian Anderson says:

    Hello, I had a house built in October 2006. At the 11 month walk there were noticeable cracks in the walls supporting an upper walkway which were patched and repaired by the builder. Within two years the same cracks re-appeared and I insisted a structural engineer provide a report on the possibility of structural issues. He identified issues with the shims and had the builder open the walls and repair the issues. Within another couple years the walls again cracked in exactly the same place but this time the builder would not take responsibility and claimed that the cracking was superficial and not indicative of a structural issue. Despites efforts from the BBB and channel 9 news they would not accept responsibility. I let the issue sit until about 4 months ago when a painter at my house identified significant warping in the floors right where the original issues had presented themselves. I again contacted the builder and this time they denied responsibility claiming that the 10 year warranty was up. They suggested I have an engineer look at the floor and they would re-evaluate. The same engineering company that had performed the original and subsequent inspections again came to the house about 2-3 months ago and identified possible issues with the structure. I am not sure why this was not previously identified. When the report was sent to the builder they claimed that “Upon review of the report, the findings presented in the report do not constitute structural failure or defect as defined by the structural warranty. Some movement may occur over time in the home, which may cause drywall cracking. This is not covered under the structural warranty, and repairs to the drywall are made on a one-time basis as a courtesy during the first year after the home has closed. The cause for the “hump” in the flooring as described by the report does not indicate structural failure nor defect. Further, the home is no longer under the ten-year structural warranty, as this warranty expired 10/27/2016.” I think the engineer’s report speaks for itself and this issue has been on ongoing for the past 10 years over which the builder has refused to accept responsibility. Is this issue affected by the statute of repose and do I have a claim?

    • Melissa Dewey Brumback says:

      Possibly you still have a claim, especially if you can show that it was their actions that caused you to delay getting it repaired/bringing suit– you thought they’d fixed the problem (based on their representations) but they only “covered over” the problem. That could give rise to claim of fraudulent concealment; however, the fact that the second time they refused to do a repair could argue against that. Not entirely clear on when they told you to have an engineer look at it and when they denied it most recently, but that may help/hurt you depending on the timeline.

  3. Michael says:

    I was the engineer of record on a project for and Architect client – that was cancelled back in early 2005. My last act on the project was at that time. The project was later revived under a different architect and was completed in 2010.
    The 2nd Architect is now being sued based on an issue with the property boundaries. my question is when does my statute of repose begin? The NC statute says the later of the date of my last act; or the date of the substantial completion of the project. I was not involved in the project at all after early 2005. Could I somehow get draged into this action?

    • Melissa Dewey Brumback says:

      Arguably you could get dragged in, but you appear to have a valid defense to get out on a motion to dismiss or motion for judgment on the pleadings if you do get sued. If the project was “revived” with another architect, it seems the Statute of Repose should keep you from being (successfully) sued.

  4. Wanda Smith says:

    I understand how the Statute of Repose applies to contractors and subcontractors, but what about the Health Department and the Planning & Inspections Department Inspectors?
    I bought my house in February 2010, it was a foreclosure. The house was built in 2006, with the final inspection in October 2006. It sold for the first time in June or July 2007, it was only occupied for approx 1 year and then foreclosed. The house sat empty until I bought it in 2010.
    In 2013, because of serious septic problems, I discovered that I have an illegal septic system. Based on information from the health department, detailing their rules for issuing permits, a septic permit should have never been issued for this house without revisions to the original plan. The final inspection of the septic system was completely falsified, nothing is where they say it is, and the measurements they provided are no where near correct.
    The plastic septic tank collapsed and I had to move out of the house in November 2014, I still make my payments and maintain electricity at the property… The health department agrees they are partly at fault and agree to fix a small part of the problem but refuse to talk about the remainder of the problems.

    PLEASE tell me the Statute of Repose doesn’t apply to the inspectors…

    Desperate in NC Mountains

    • Melissa Dewey Brumback says:

      Dear Desperate Wanda:
      The statute of repose relating to real property would not apply; however, there are other statutes of repose/limitation that apply to negligent or intentional acts of persons, which in any event is 10 or fewer years depending on the type of matter. So as far as going after the inspector you are probably out of time. You *may* have an argument that the inspector was grossly negligent and fraudulent in his reports, in such a way as to conceal discovery, and that the statute should not run until when you discovered/should have discovered the issue. If you discovered the issue in July 2013 or later, you *may* have an argument that you can still bring an action, but you’ll need to act quickly to avoid the standard 3 years from discovery rule in that case.

  5. Robert says:

    Purchased a new home in 2008. Many punchlist items repaired at end of the 1 yr punchlist deadline in 2009. Some ceiling / drywall cracks repeatedly showed up in several locations throughout the home cosmetic repairs made by the builder. In 2010 again, similar cracks in similar locations appeared.

    I am a licensed architect specializing in res. design. I insisted that the builder cut open walls, ceilings and bulkheads in the locations of the repeated crack apperances to investigate repeated movement in the house structure. The builder refused to investigate by cutting back drywall and exposing the structure. Once again they only made cosmetic repairs insisting the cracking was a result of “normal” settlement and tried to convince me settlement could occur for up to 10 yrs.

    In 2011 I was diagnosed with cancer and fought it instead of my builder until 2014. 2014 I made another request for forensic work to be done by the builder – again he refused. In 2015, I contacted the corporate office in CA. They put in place a new team that has been proactive in seeking the source of the damage.

    Today the builder discovered significant structural and construction defects in my roof framing. A structural engineer has been hired by the builder to develop an action plan. The builder has assured me they will make the house “whole” again.

    I have asked them to buy the house back, of course they refused. Do i have any recourse in getting the builder to buy back the home, given I asked them to take action within the 1st year of ownership? Until this week, they never took appropriate steps to resolve the matter.

    Both my wife and I operate businesses out of our home. They want to move us out during repairs and have offered to pay to do so. However, it will not cover our cost or disruption to our business.

    What kind of attorney should I be consulting with? Do I even have a case to force a buy back?

    Thank you!

    • Melissa Dewey Brumback says:

      In a defective house case you can ask for the contract to be rescinded. The fact that it was from 2008, though, makes me concerned about the statute of repose (6 years after CO). You maybe have a contract with a longer period of time in it– if it has certain “seal” language in it, you could make a contract claim for up to 10 years. In this case, the fact that they are now coming to the table is a good sign, because it has been so long. You’d ultimately have to sue them to force a buy-back, and if they are willing to fix it and pay for expenses, that may be more worthwhile than attempting litigation- which is costly, expensive, and uncertain.

  6. Sherry says:

    We are having an issue with concrete-based the house. We are currently stuck. The hardwood floor started to have mixture since we moved in 5 years ago. During the 1 year warranty, unfortunately I did not reported to the builder. Two years later, I had handyman removed several pieces of hardwood floor and found cracks of the slab. Recently, we moved out, and had someone removed all affected floors. And we found that there are patches on the concrete. It looks like the builder cut the concrete when the house was building, then they put the patches on. Currently, I am dealing with my homeowner insurance company. It looks like the insurance company will not cover it. What should I do now? Go ahead find someone fix the problem with the pay out of pocket? or else?


    • Melissa Dewey Brumback says:

      Sherry- Just because your builder 1 year warranty has expired does not mean that you still cannot make a claim against the builder. You generally have 3 years on a breach of contract claim, from the last time they did work (not counting punch list/warranty work) on the house.

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  9. Senith Helms says:

    Does the Statute of repose apply if the work was not done according to code. For example, we are having roof issue’s with a house we bought (brand new) in 2007. There was a leak in 2009 which the builder had his subcontractor come out and supposedly fix. Now we find the leak was never properly repaired and subsequently we have major mold/mildew damage. When speaking with the our Town’s building inspectors they admit they do a visual inspection of the roof but don’t actually get on the roof. We were told by the building inspections department we may have a case if the roof wasn’t built according to N.C. Code. In the event it doesn’t apply what other recourse do we have regarding the builder?

    • Melissa Dewey Brumback says:

      The statute of repose applies to all cases. There are very, very limited exceptions where, for example, the parties agree to toll the statute by written agreement. While a statute of limitations can be extended due to latent or hidden defects, the statute of repose can and does sometimes run before you even know you have a problem. It’s not always an ideal result, such as in your case, but the law needs finality. Your best bet at this point is likely a homeowners insurance claim, and reporting the builder to the licensing board.

  10. Robert McIver says:

    Hi Melissa!
    I had a small contractor (2 people) build a deck on the back of my house which includes a screened-in porch finishing the job June 20, 2009. From what I can tell, the roof pitch is not enough to allow water to run off & it has leaked since day one. He used OSB & it now appears to be rotting making it unsafe for me or anyone to climb on the roof to rake off pine straw. I contacted the contract a week or so after completion. He said he would be over to fix the problem, but we haven’t see him yet. From time to time my wife & I try calling him with no luck. My brother works at Lowe’s & he used to confront him about it each time saying he would call me. Haven’t heard a word! it’s time for us to pursue a new roof on all of our house, but I know the roofer will run across this problem & I’ll have to pay for this guy’s errors again to make it right. Can I report him the State Building office? I really believe paying for the repairs will cost less than attorney fees, but this guy needs to be off the streets. He’s done this with another friend of mine also who had to pay a roofer to fix his errors. Thanks so much!

    • Melissa Dewey Brumback says:

      Yes, you can make reports to the Licensing Board for General Contractors, assuming that he has a g.c. license. You can also always report folks to the Attorney General’s office which, if enough people complain about a business, will do an investigation. You might check as well to see if the contractor has insurance that might cover these defects, since it caused problems to other property of yours and not just the deck.

  11. Lost says:

    I have paid my previous attorney over 100,000.00 in attorney fees. My construction suit was filed 2008 and voluntarily dismissed without prejudice 2010 without my knowledge. Suit was filed again 2011 and dismissed by stipulation of dismissal in 2012 also without my knowledge. The last work preformed by the contractor was in July of 2006. My attorney told me my claim for fraud was not time barred although the statute of limitation on the other claims are. Any suggestions on what I should do now.

    • Melissa Dewey Brumback says:

      Dear Lost:

      Of course I cannot comment on the specifics of your case, but if you believe that actions were taken without your consent you should file a complaint with the Grievance Committee of the NC State Bar. You may also want to consider bringing a civil action against your lawyer, but those are tough cases to make absent extremely good documentation.

  12. Mo Zanaty says:

    You mention that warranty work does not extend the statute of repose in most cases. What if the warranty work is specifically the latent defect under dispute? In my case, new construction completed over 6 years ago, the statute of repose has expired for that original “improvement to real property”. Water infiltration caused window leaks that were repaired under warranty 3 years ago. After heavy rains last week, the same windows leaked again, and upon inspection of the problem, structural framing members have been weakened by prolonged water infiltration due to improper warranty work, which will require costly repairs. Is there a separate statute of repose on the warranty work as a “last act” of that “improvement to real property”? Or am I barred by the original statute of repose to bring claims against the latent defects in the warranty work? Thank you very much for your concise descriptions of NC SOL/SOR.

    • Melissa Dewey Brumback says:

      Mo: Thanks for your comment. Since there were defects in the warranty work itself, I believe you’d have a valid argument for a claim on that warranty work for 3/6 years from that date. 3 years on the SOL, and 6 on the SOR. Hope that helps.

  13. Jack Alfred says:

    Another question; could the Archtect be held liable for Profesional Negligence past the 6 year period for knowingly specifying a non-compliant product. Then knowingly trying to remedy the mistake by adding suplemental materials to try to make the product compliant.

    • Melissa Dewey Brumback says:


      Sorry I missed this comment earlier. In general, past 6 years = no liability. However, there are exceptions– for example, if you fraudulently conceal the situation such that the discovery is not reasonably made until later, the court may find that the statue of repose was tolled, or make another equitable finding, such that the architect could still have liability.

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  15. Jack alfred says:

    I am dealing with a situation where the Architect specified a specific LVL preengineered beam for supporting outside balconies. when in fact the Manufacturer of those beams specifically specifies for dry undercover use only. The Beams are now failing. The beams were installed 2 between 2001-2030. Does the Statute of Repose also cover the architect for his negligence. We just discovered the rot here in 2012.

    • Melissa Dewey Brumback says:

      Thanks for your comment. Yes, architects also have statutes of repose and limitations which apply to their work. There can be some question as to when the statute begins to start running for an architect, esp if they were involved in the construction administration. If the architect only did design and was not involved in construction, then the statute presumably starts running against the architect that much sooner.

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  17. Grant Hopson says:

    I don’t understand this:

    “The claims against the subcontractor were deemed time-barred under the statute of repose. 133 N.C. App. 235,515 S.E.2d 445 (1999). In Monson, the contractor had to defend the action but had no ability to recover from the subcontractor who actually performed the poor construction.”

    Why does the contractor have to defend the action; when the subcontractor is protected by the Statute of Repose. Shouldn’t it apply to both of them?

    • MelissaBrumback says:

      Thanks for your comment. The statute of repose runs from the date of your last work. If the subcontractor last worked on the project on January 1st, 1980, his statute of repose would run January 1st 1986. The GC was probably on the job longer. Let’s say he finished on March 1st, 1980. His statute of repose then would run on March 1st 1986. If a lawsuit against the GC were commenced in February 1986 (and it qualified under the statue of limitations as a latent discovery), the GC could be on the hook while the sub is not. True, it is unfair to the GC, esp if it is the sub’s work that is really at issue. However, the point of the statue of repose is to give some finality that after X date, nobody can come after you no matter what.

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