Limitation periods are used a great deal in construction law. What are they, and how can they affect a claim for construction defects?
It is simply a period of time, at the end of which a right is extinguished.
You have the right to claim for certain damage because the building is, so to speak, under guarantee (it depends on the damage, and it may be 6 months (latent defects), 1 year (finishes), 3 years (habitability), 5 years (contractual) or 10 years (structural). But from the moment the damage becomes known, there is another period within which to claim (normally 2 years), and it too “becomes time-barred”, which means that once that period has passed you can no longer claim.
It is then said that the right to claim is time-barred. The right to claim has been lost.
Fine. But when does the period start to run?
If the law gives us a period in which to claim for damage, because cracks appear in your house, when does that period start to run? From the moment hairline cracks as thin as a hair appear and there is evidence that the owner knows about them? (For example, because the owner emailed the architect when the “hairlines” appeared, complaining or asking about them.)
Bear in mind that no other architect acting as your expert can classify that “hairline” as a sign of a serious structural problem without keeping it under observation: placing crack monitors and, over a period of time, observing and recording whether the hairline grows in length and/or its width turns it into a hairline crack, then a crack, and later perhaps into something more dramatic.
Then, as time passes, by checking that the cracks have stopped growing in length and width, and by studying the building plans, it is possible to interpret or deduce what is happening in the structure and whether it is failing, and to prepare a technical report accordingly.
How long does the study take? 6 months? 1 year? Possibly, but it is important to know, because if the limitation period for claiming that structural damage is 2 years, you need to be careful: the period runs out, and by the time we know the final result of the study, the right to claim could be time-barred and nothing more could be done.
So how is the issue resolved?
Case law holds that WHERE THE DAMAGE IS CONTINUING, THE LIMITATION PERIOD DOES NOT START TO RUN UNTIL THE HARMFUL EFFECTS HAVE CEASED.
This means that, in the case of continuing damage, the limitation period does not start to run until the harmful effects have ceased. We will therefore keep observing and studying the damage until it has finished developing.
In other words, until the cracks have stabilised, or for as long as they continue to worsen.
In these cases, the limitation period does not start to run until the harmful effects have ceased, that is, while the CRACKS REMAIN ACTIVE.
If the cracks and hairline cracks in the homes have not stabilised and are still active, they constitute continuing damage. (Judgments of 20-3-93, 7-4-97, 4-7-98, 2-7-01, 11-2-02 and 5-6-03, among many others).
Such cracks and damp in the home must be regarded as latent damage, live in the sense that it was continuing to worsen without its final outcome having yet occurred, and it is clear that, under article 1969 of the Civil Code, the period can be said not even to have begun and the limitation defence must therefore be rejected. The period will only start to run when the cracks have definitively stabilised.
In the case of continuing damage, or damage occurring successively and without interruption, the limitation period does not start to run until the final outcome has occurred (Judgments of 12 December 1980, 5 June 2003, 14 March and 20 November 2007, among others).
- Continuing damage, therefore, is damage that occurs successively, without interruption and becomes progressively worse, and the limitation period (article 1969 of the Civil Code) will not start to run until the final outcome has occurred.
To understand it better: “Continuing damage is damage that appears as a result of a harmful activity operating day by day. Even so, there will come a point at which it stabilises and its full extent becomes known; that is the point which case law takes as the ‘dies a quo’ (the starting date) for calculating the limitation period.” (Judgment no. 31/2004 of 28 January (Appeal 882/1998))
A command of what continuing damage is, the argument and its counter-argument or denial, is what lawyers frequently argue and invoke against each other in construction defect trials, and although we have explained it for cracks alone, it applies to other types of damage too. Both arguments are debated in the courts, and their interpretation varies between judges and Provincial Courts.
That is why raising the limitation defence and having it upheld is a success for the party raising it, and, where the damage is active, arguing and proving that the limitation period starts when the continuing damage stabilises, and winning, is another significant achievement for the party relying on it. Because being right is not enough, in either case: you have to persuade the court, and it has to find in your favour.
So, if you believe the damage to your home is continuing, do not hesitate to contact us and tell us about your case, so that we can claim for the repair of the damage to your home.
Any questions?