Use it or Lose it
Time: Friend or Foe?
Article by: Roberto Longo, Esq.
Associate Counsel at Heine Associates, P.A.
For many, procrastination is simply a way of life. Whether it’s lack of time or lethargy, the temptation to put important matters off until they absolutely have to be dealt with has proven too strong for many. Worse, this often results in the forestalled task never being accomplished. In the legal world, procrastination can be absolutely fatal to a solid claim.
Most of us have heard the term, “Statute of Limitations.” The Statute of Limitations tells us how long from a certain point a claim may be brought by a plaintiff against a defendant. For instance, there is a six year statute of limitations on fraud in New Jersey. The six years begins on the date of the act or omission, orthe date on which the act or omission reasonably should have been discovered. If you fail to bring your claim before those 6 years are up, you miss your chance. There is no arguing and there is no way around. You have missed your opportunity.
Another, less known, term is “Statute of Repose.” The Statute of Repose in New Jersey acts as an absolute bar to claims arising out of any deficiency in the “design, planning, surveying, supervision or construction” of a project if the claim is not brought before 10 years have passed from completion of the work. The Statute of Repose is especially tricky because the clock starts to tick not when you become aware of the deficiency, but from the moment the work is completed. Imagine the following situation:
Buyer purchases a house that was built exactly 9 years ago, the roof was finalized 9 years ago. Sellers knew of a major structural deficiency in the home, but as they are eager to sell the house because they are in so much debt, fail to notify Buyer. Buyer becomes aware of the major structural deficiency after a portion of the roof collapses and damages his leg.
In the above hypothetical, Buyer may believe that he has a lot of time before he has to file a claim against Seller. While this may be technically true, the reality is that he has only one year to bring his claim against the builder, architect, or any other party involved in the construction of the house. If he fails to bring the claim in less than one year, he will be forced to attempt to recover the damages from the destitute Seller, who may not have the funds to make Buyer whole. Even worse, the real question may be, “When was the roof completed?” If the roof were completed prior to the house being finished, the Court may allow the subcontractor who performed work on the roof to seek shelter under the Statute of Repose since his 10 years may have began before the house was finished.
Matters have become even more complicated by the somewhat recent (2013) New Jersey Supreme Court Ruling in Town of Kearny v. Brandt. The New Jersey Supreme Court has held that defendants who have been dismissed due to the statute of Repose can be considered comparatively negligent. This means that the defendant can be apportioned a percentage of negligence for which the remaining defendants will not be responsible. This translates to a real world reduction in the amount of damages recoverable.
There is only one tool at your disposal to combat both Statute of Limitations and the Statute of Repose: timeliness. Bring your claim to a legal professional as soon as you become aware of it. Don’t plan on doing it “next week.” Don’t plan on doing it tomorrow. Every day is critical. Getting effective legal counsel at the right time can mean the difference between a live or dead claim.
For those designers, surveyors, and contractors reading this article, the best advice that we can offer is to include completion dates in your contracts and to take meticulous note of your dates of completion. You will have the massive protection afforded by the Statute of Repose once ten years have passed.
Stay Tuned… Future articles:
Under the Statute of Repose:
- When is the project complete?
- Can a single project have different completion dates for designer and contractor?