Chapter 3-1 Limitations Versus Repose

• Jurisdiction: United States

3-1 Limitations Versus Repose

The statute of limitations and the statute of repose are both affirmative defenses.¹ They are both waived if not pled, and the burden of proof rests with the party raising the affirmative defense.²

However, the two defenses differ in several fundamental respects, including: the length of the statutory time period, the event that triggers the time period to run, and the effect of the time period's expiration.

Some older appellate opinions conflate limitations with repose, in part because the repose statute is inaptly titled "Limitations."³ This statutory confusion has been clarified by more recent appellate opinions, and today's practitioners and courts should be familiar with the difference.

3-1:1 Statute of Limitations in Brief

Foreclosure actions in Florida are subject to a five-year statute of limitations.⁴ The five-year period begins when the cause of action accrues.⁵ For a detailed discussion of accrual, see Section 3-2:1. When the five-year period expires, the claimant's ability to obtain relief is barred.⁶

However, statutes of limitation in Florida are procedural, and "their expiration does not affect the underlying substantive rights of the parties involved."⁷ The statute of limitations does not eliminate a foreclosure claim; it "merely cuts off the right to file suit on that claim."⁸ Therefore, the mortgage lien survives the time bar.⁹ Additionally, the foreclosure claim may be viable as a counterclaim in recoupment. See Section 3-2:6.

3-1:2 Statute of Repose in Brief

In contrast to the statute of limitations, the statute of repose is substantive. When the repose time period expires, the lien of the mortgage terminates.¹⁰

The repose time period is calculated in either of two different ways, depending on whether the maturity date of the mortgage loan is "ascertainable"¹¹ from a search of the land records. If the maturity date is ascertainable from the recorded mortgage or its attachments, then the repose period is five years from that maturity date. If the maturity date is not ascertainable from the recorded mortgage or its attachments, then the repose period is twenty years from the "date of the mortgage." Both the length of time and the starting point differ, depending on whether the maturity date is ascertainable from the record.

If the maturity date is not ascertainable from the original recording of the mortgage (making the repose period twenty years from execution), then the holder of the mortgage has the option...