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Lopez v. B&J Craftsmen, Inc.

A-4946-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

CONTRACTORS; ARCHITECTS; STATUTE OF REPOSE — Where defects in performance all relate to original construction or design, then subsequent attempts at repairs do not toll the ten year construction statute of repose.

A property owner contracted with an architect and builder to construct a home. Plans were approved and a certificate of occupancy was issued. Almost immediately after moving into the house, the homeowner experienced a problem with surface water entering the house around sliding glass doors. Repairs were made by the architect and builder over the course of ten years. According to the homeowner, none of the repairs were successful. Eleven years after a certificate of occupancy was rendered for the dwelling, the homeowner sued the architect and builder. Both defended the matter and moved for summary judgment on the basis of New Jersey’s ten year statute of repose. Those motions were ultimately granted by the lower court. The homeowner appealed.

The Appellate Division stated that the statute of repose bars suits against individuals responsible for improvements to real property, more than ten years after the performance or furnishing of such services and construction. It held that the statute begins to run upon substantial completion of the building, which may be represented by the date when a certificate of occupancy is issued attesting to the building’s fitness. The homeowner argued that her suit, filed eleven years after the certificate of occupancy was issued, should not be barred because the architect and builder were involved in repair efforts for many years and the suit was filed within ten years of the last of their repairs. The Court observed that in matters involving the statute of repose, claims with respect to original design and construction over ten years old may be barred as out of time, but claims with respect to subsequent attempts at repair, if they constituted improvements to real property, may not be barred by the statute. However, in this matter, the Court found that the defects in performance all related to the original design and manner in which the architect supervised the construction of the residence. As such, it agreed with the lower court’s holding that all claims against the architect were barred by the statute. Additionally, the Court upheld the dismissal of claims against the builder. In doing so, it concurred with the lower court’s analysis and conclusion that the homeowner’s expert reports failed to distinguish between claims related to the original construction and claims related to the subsequent efforts at repair.

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