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Latest on Residential Construction Defects: by When Must You File Suit?

Saturday, June 6, 2015 @ 10:06 AM
Brian Montague

Next to personal injury disputes and divorces, few civil case types are more common than those arising out of defective residential construction.  The aggrieved homeowner spots a problem, be it with the foundation, the roof, or something in between.  From his or her perspective, where there is a defect caused by a builder there ought to be remedy. From the builder’s perspective, there ought to be time limits on such exposure. There are. The limit is six years, measured from “the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof ….”  Section 15-1-41 if the Mississippi Code of 1972 (Mississippi’s so-called statute of repose).

This past week, the Mississippi Court of Appeals was called upon to interpret this statute in a case involving sinkholes.  In Aydin v. Marty Daniels Construction LLC, the house in question was custom built in 1995 for Chris and Kathy Ross and later was sold several times.   In 2010, owners Nurdan and Adnan Aydin began noticing sinkholes in their backyard.  The cause, the Aydins discovered, was this: when a gully developed on the property during construction in 1995, the Rosses asked the builder to fill it with construction debris and tree stumps and trunks.  Fifteen years later, sinkholes developed at that location.  Associated problems were numerous.  After the gully was dug up and the decaying material was removed, approximately forty truckloads of dirt were needed to fill the gully.  Their driveway was destroyed, and the sinkholes caused extensive damage to the interior and exterior plumbing of their house.

To avoid the six year statute, the Aydins argued that the gully and the defective fill material were fraudulently concealed and that one who fraudulently conceals is not protected by the six year statute of repose.  The Court of Appeals agreed in principle, but said the Aydins had not established fraudulent concealment.  Specifically, “there must be some affirmative act by the [builder] … designed to prevent and which did prevent discovery of the claim.” The problem for the Aydins was that they had no evidence to show that Daniels committed an “affirmative act” to prevent discovery of a claim. Rather, the builder filled the gully with the materials that had been taken out, he completed his work on the property to the satisfaction of and at the direction of the home owners, and he left.  “There is nothing in the record or the briefs on appeal that indicates Daniels committed the requisite subsequent act of concealment.”

How might the result have been different?  If the home owners had never requested that the gully be filled, but instead the builder filled and buried the debris on his own and without the knowledge of the home owners to avoid cost of hauling off the material.  That might have met the fraudulent concealment test.

The six year statute of repose can yield harsh results, though its purpose (avoidance of open-ended builder exposure) is sound.  Prospective and current home owners should be aware of the statute.

Written by Brian Montague

Brian Montague

A fourth generation Hattiesburg native, an Iraq and military veteran, and a 1983 graduate of the University of Mississippi Law School, Brian Montague has established an AV rated, well-respected neighborhood law practice focusing on trying cases in state and federal court, corporate and transactional work, insurance defense and coverage, personal injury and wrongful death, residential construction and development issues, and estate probate and administration.