Construction Bills: Recent Changes to Construction Laws

AuthorBy Rowan T. Mason and Brian R. Zimmerman
Published in The Construction Lawyer Volume 43, Number 1, ©2024 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Forum on Construction Law The Construction Lawyer Volume 43, Number 1
Construction Bills: Recent Changes to Construction
By Rowan T. Mason and Brian R. Zimmerman
Recent Reductions to State Statutes of Repose in Florida and Texas: A National Trend or
Every lawyer is intimately familiar with the concept of statutes of limitations and many litigators
frequently encounter them in day-to-day practice. Fewer, however, concern themselves with its cousin—
the statute of repose. But for those in construction and construction insurance law, statutes of repose can
function as an important end date after which all potential liability for a project is absolved.
At the most basic level, a statute of repose acts as the bookend of any potential liability. While a statute
of limitations puts time limits on claims for patent or known defects, the discovery rule and tolling
principles can theoretically extend the statute of limitations for unknown, latent defects, in perpetuity. For
this reason, many (but not all) jurisdictions also impose statutes of repose, particularly in the arenas of
construction and products liability; these statutes ensure that contractors do not face lawsuits for work
performed decades in the past. Such statutes range from five years in Arkansas1 and Tennessee,2 to 10
years in the District of Columbia,3 Hawaii,4 Kansas,5 New Mexico,6 Rhode Island,7 and others. A few
states also have statutes of repose that go beyond 10 years or can be extended beyond 10 years under
certain circumstances.8
The issue, of course, can be polarizing. Contractors and insurance companies naturally prefer shorter
statutes of repose that begin to run as early as possible. These entities insist that longer periods of liability
increase risk (and therefore cost) and result in more litigation, sometimes after potentially responsible
subcontractors and suppliers have gone out of business. Advocates for owners and plaintiff-side defects
lawyers counter that purchasers of construction (particularly condominiums in large projects) must be
protected from latent defects that may not manifest for years.
In what could be the beginning of a trend, several states have recently taken steps to reduce their statute
of repose periods. The most recent example is Florida. On April 13, 2023, Florida’s Governor DeSantis
signed into effect a new law altering Florida’s statute of repose in several ways.9 Most dramatically, it
reduced the statute of repose from 10 years down to seven years.10 But the new law also starts the clock
with the earliest possible trigger date rather than the latest. The prior codification stated that the statute
of repose began to run from the latest of (a) the date of actual possession by the owner, (b) the date of
the certificate of occupancy, (c) the date of abandonment of construction if not completed, or (d) the date
of completion or termination of the contract.11 The modifications now begin the statute of repose at the
earliest, not latest, of the potential triggers and removes items (a) and (d) above, thereby reducing the
necessity of fact discovery to determine, for example, if a claim is rescued by the date of the owner’s actual
possession of the property.12 The amendment further provides that while the new law is effective, the
shortened statute of repose will not be enforceable until July 1, 2024.13
Texas also recently shortened its statute of repose. While the Texas change only affects residential

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