APPENDIX 1

• Jurisdiction: Colorado

APPENDIX 1

Comment: The following checklist attempts to account for (1) C.R.S. § 13-80-104 and case law construing that statute; (2) additional potential legal arguments available to toll the limitations period or estop a construction professional from asserting the statute as a bar; and (3) arguments for a longer or extended tolling period based on grounds not yet addressed by Colorado's appellate courts. Practitioners should consider the effect of any applicable local construction defect notice ordinances, and revise this checklist accordingly. See § 2.2.6, "Construction Defect Municipal Ordinances."

Construction Defect Statute of Limitations and Repose Checklist Step 1: Consider Statute of Limitations and Repose Trigger Dates

Identify each alleged defect framed by the Complaint.

As to each alleged defect, identify the earliest date the claimant or its predecessor in interest actually or constructively discovered the manifestation of the alleged defect. In a multi-family development, a non-board member unit owner's discovery is not attributable to the homeowners association unless and until the unit owner reports it to the association board. However, depending on the circumstances, a non-board member unit owner's discovery may constitute some evidence that the defect was manifest and that the board should have discovered its existence.

As to each particular defect, consider the following questions:

1. Do facts exist to show that the alleged manifestation was caused by something other than a construction defect alleged in the Complaint?

2. Do facts exist to show that the alleged manifestation was a transient condition unrelated to a construction defect alleged in the Complaint?

3. Do facts exist to show that the alleged manifestation was of a condition that had not yet risen to the level of a manifested defect, i.e., that the condition was within normal construction tolerances or due to normal changes in physical appearance as a result of the passage of time? See Smith v. Executive Custom Homes, Inc., 230 P.3d 1186, 1189 n. 3 (Colo. 2010); Stiff v. BilDen Homes, Inc., 88 P.3d 639, 641 (Colo. App. 2003).

4. Do facts exist to show that the alleged manifestation was unique to a particular location and is not the manifestation of a more pervasive defect, or was not sufficient in nature or degree to constitute discovery or constructive discovery of the existence of a pervasive defect, such as a pervasive design error or repeated construction error, and, thus, would only bar a claim for damages for that particular localized defect but not others? See Wildridge Venture v. Ranco Roofing Inc., 971 P.2d 282 (Colo. App. 1998).

5. As to a defect allegedly discovered outside the repose period, do facts exist establishing a genuine issue of material fact whether the claimant

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