Previously published in the Union Leader
Q. My wife and I had a custom home built for us 5 years
ago. Last year, significant structural problems came to
light, and it will cost us a fortune to make the necessary repairs.
The builder will not return our calls. Is it too late to seek
recourse from the builder?
A.Unfortunately, this scenario is not uncommon as significant
defects with new construction often do not manifest themselves
immediately. If the problems arise out of faulty construction or
design, it may not be too late to seek recourse from the builder or
design professional.
New Hampshire law provides a 3-year statute of limitations that
applies to claims arising out of construction defects. But like
most states, New Hampshire's statute of limitations is
subject to what is commonly referred to as the "discovery
rule." In the construction context, this means that the 3-year
limited period for bringing a lawsuit does not start running until
the time a party discovers its damages and the fact that the
damages were likely caused by defective construction or design.
This premise is based on the obvious unfairness of precluding
homeowners from bringing a lawsuit before they discover the
defective construction.
However, the so-called discovery rule potentially could lead to
unlimited exposure to builders. Accordingly, New Hampshire law also
includes an 8-year "statute of repose," which requires
that any claims against builders be brought within eight years of
substantial completion of the construction project, regardless of
when the alleged construction defect is discovered. The New
Hampshire Legislature enacted this statute of repose on the basis
that it was in the public interest to prevent builders and others
in the construction trade from facing liability for an unlimited
duration after completion of a project. There are exceptions to
even the 8-year limitation when a builder fraudulently conceals a
defect.
In sum, the liability of builders and contractors is limited to
claims brought within three years of the discovery of defective
construction, and regardless of when discovered, within eight years
of the date of substantial completion of the construction project.
If you discover construction defects within your home, you should
immediately contact the builder. Fortunately, most good builders in
New Hampshire are responsive and will properly address an
owner's concerns. But if the builder does not, you should
consult with your attorney promptly to understand your options.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.