Statute of Repose Not Tolled by Builder’s Occupancy of House
February 17th, 2015
Is the New Hampshire eight-year statute of repose tolled (extended) when the original builder occupies a house for four years? The NH Supreme Court has said no. Drouin Builders built the house in 2001 and conveyed it to sole shareholder Michael Drouin. He lived there and later sold the house in 2005. The new homeowners noticed problems in 2008 but did not file suit until 2011. The homeowner’s lawsuit claimed defective work in the original construction. Faced with a motion for summary judgment, they argued that the statute of repose was tolled during the period of time Drouin occupied the house. The NH law provides that an action to recover damages arising from the original construction must be brought within eight years after substantial completion. There is other language in the statute which provides that claims arising from negligence in the “repair, maintenance or upkeep” are not subject to the statute of repose. But the successor homeowners claimed that the problems arose from the original construction and not from any repair, maintenance or upkeep. The NH high noted: “We agree with the majority of courts addressing the issue that, when a builder-owner is sued for his construction-related activities, the statute of repose applies. To interpret the statute of repose otherwise would be contrary to the legislature’s intent in enacting it – which was to protect the building industry. “ Thus, there was no tolling in this situation, and the homeowners were simply too late to file suit. The case is Ingram v. Drouin, 2015 N.H. LEXIS 11 (Feb. 15, 2015).