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Court Doesn?t Leak Out Remedy for Homeowner?s Defective Roof

An unhappy homeowner sued a roofing contractor for roof defects seven years after her roof was installed. Roemer v. Preferred Roofing, Inc., 660 S.E.2d 920 (N.C. App. 2008) (NC Lawyers Weekly No. 08-07-0634). The homeowner alleged negligence, breach of contract and breach of warranty, seeking only monetary damages. A few months later, the more unhappy homeowner voluntarily dismissed her negligence and breach of contract claims. Why? Because the roof contractor?s motion to dismiss pointed out North Carolina?s statute of repose, which bars actions that seek damages based on defective or unsafe conditions of improvements to real property six years from the date the roofing contractor substantially completed her roof installation.

But what about the homeowner?s remaining breach of warranty claim? After all, the roof contractor provided an express lifetime warranty of dependability. Further, in
Haywood Street Redevelopment Corp. v. Peterson Co., 120 N.C.App. 832, 463 S.E.2d 564 (1995), the N.C. Court of Appeals held a breach of warranty claim was not barred by the statute of limitations (rationale would similarly apply to statute of repose) because each day the warranty was breached a new cause of action accrued. However, the even more unhappy homeowner knew she was in hot water when the court ruled that her case was different because she sought money damages only, when the only remedy she had that could survive the six year statute of repose was for specific performance (court compel roof contractor to fix the problem), not money damages.

Is there a practice pointer here to save for a rainy day? Yes, the best way to keep your head above water is to file your breach of warranty claim within the applicable statute of limitations and repose periods. And if your breach of warranty action is filed more than six years after substantial completion, in addition to money damages, the face of your complaint should also seek specific performance. (This entry posted by Ken Michael, a member of Womble Carlyle?s real estate development and construction law practice group.)

Source: NC Lawyers Weekly

Full post as published by Womble Carlyle Constrution Industry Blog on June 24, 2008 (boomark / email).