Where the foundations under several condominium style townhouses settled and caused damage, the unit owners sued the condo association for failing to do necessary repairs. The court dismissed the tort claim that asserted that the foundations were negligently constructed because the 3 year statute of limitations had lapsed. The breach of contract claim asserting the association had a contractual obligation to the unit owners to do the repairs was held to be valid because it was filed within 6 years of the date the association ceased doing repairs to the units. Canner v. Governors Ridge Association, Inc., 348 Conn. 726 (2024).
The plaintiff, condominium owners, sued their condominium association alleging that the foundations supporting their respective units were sinking as a result of improper design. The trial court dismissed the negligence based allegations concerning the defective design because the three year statute of limitations had lapsed – running three years from the date of purchase. The trial court also dismissed the breach of contract count of the complaint.
The defendant, condo association, had over a period of several years attempted to correct problems arising due to the differential settling of the units. The plaintiffs eventually attempted to sell their units and potential purchases refused to complete the sale because they found the floors sloped “dramatically.” At that point, the plaintiffs filed their suit against the condo association because they couldn’t complete the sale of their units.
The two counts of the complaint alleged (1) the foundations were constructed under the units negligently and (2) the condo association thereafter violated its contractual duties to the unit owners by failing to conduct necessary repairs to common elements of the community.” The trial court concluded that the tort statute of limitations applied to all counts. This is because it found that the essence of the statutory (contractual claims) was that the foundations had been improperly constructed on soft ground that the statute ran from the date of the act or omission of constructing the foundations.
A relevant state statute required condo associations to repair or replace “any portion of the common interest community for which insurance is required under this section which is damaged or destroyed….” The defendants argued that particular foundations involved in this matter were not “insurable common elements” and the statute was therefore inapplicable. The appellate court concluded that the statute does make the insurance matter “absolute.” It concluded there could be a statutory obligation of the association to do repairs here.
The statute did not expressly create a statute of limitations governing claims brought under the statute against a condo association. “When a statute includes no express statute of limitations, we should not simply assume there is no limitations period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued on.” Applying the 6 year statute of limitations period to the plaintiff’s statutory claim against the association for failure to repair the foundations, the appellate court reversed the trial court decision and allowed this case to be pursued through litigation.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 27, No. 2 (Feb 2025).
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