Does this cold winter snap have you motivated to finally get to those home improvement projects you’ve been putting off for years? While preparing to undertake the much-awaited work, you find problems in the construction of your home from long before you ever considered doing the new work, maybe even years. You immediately question whether you can bring claims against someone for defective work they performed several years ago, that was not apparent (“latent”) until several years later.
A negligent construction claim was allowed to proceed despite construction finishing over three years before the lawsuit was filed.
A recently decided case from the North Carolina Court of Appeals shows that reasonable minds can disagree about whether a construction defect is “latent” or not. In Benigno v. Sumner Constr., Inc., 862 S.E.2d 46 (N.C. Ct. App. June, 15 2021), a homeowner filed a lawsuit against a contractor alleging that the contractor negligently constructed a fence on the homeowner’s land. The homeowner alleged that the fence was constructed too far off the property line and that the fence was defectively constructed over four years before the lawsuit was filed.
The fact that the lawsuit was filed so long after the fence was constructed could have prevented the homeowner from recovering anything from the contractor because generally a claim for negligent construction must be brought within three years of when the work was completed and damage to the claimant’s property occurs. The three-year clock only begins to run, however, when physical damage to the claimant’s property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.
If the improper installation of the fence was not obvious or discoverable, then it could be considered a “latent defect” that would allow the homeowner to proceed with the lawsuit, even though the fence was installed in 2015 and the lawsuit was not filed until 2019.
What is a Latent Defect?
A latent defect is a defect which is not obvious or discoverable upon a reasonable inspection by the person bringing the claim. Here, the contractor argued, and the trial court agreed, that the alleged improper construction of the fence was not a latent defect because a fence is visible, and the location of the fence could have been easily discovered with a survey (which is routinely ordered when purchasing real estate). A divided Court of Appeals disagreed and overturned the dismissal of the homeowner’s negligent construction claim against the contractor.
The majority of the Court stated that the negligent construction claim can proceed because the homeowner alleged that the negligent construction of the fence was not apparent or ought reasonably to have become apparent until the homeowner’s neighbor began construction of a neighboring fence shortly before the homeowner filed the lawsuit.
The dissent disagreed with the majority’s finding and stated that the trial court was correct to dismiss the lawsuit because the fence was both clearly visible, and any purported defect in its location was easily discoverable by the owner, with or without a survey. Thus, the dissent would have dismissed the negligent construction claim because the defect was not a hidden or latent defect that was not visibly apparent during a reasonable inspection.
The facts of this case show that sometimes reasonable minds can differ as to when a negligent construction claim must be dismissed for being filed after the expiration of the three-year statute of limitations. If you are interested in speaking with an attorney about a construction case, including claims you may be able to bring, please contact the construction law attorneys at Skufca Law at (704) 376-3030.