The Statute of Limitations creates a time limit within which to file a lawsuit Law Offices of Fred M. Duman & Associates 2807 Castro Valley Boulevard     Castro Valley, California 94546 Tel: (510) 537-3388 Fax: (510) 889-1114

Dear Mr. Duman:

Five years ago, I signed a contract with a landscaper to put in a new lawn and to install a sprinkler system in my backyard.

The sprinkler system has never worked properly.  Over the years, I have been too busy with my job to really deal with the problem.

This year, the sprinkler system is worse than ever.  Is it too late to sue the landscaper?

       J.K., Hercules

Usually there is a statutory time limit in which a damaged party is allowed to file a civil lawsuit (called a "Statute of Limitations").  The time limit will differ, depending upon the type of claim involved.  You may have allowed the Statute of Limitations applicable to your claim to expire.

In situations involving substandard or defective workmanship effecting of real property, possible theories of liabilities against such professionals as contractors, architects, engineers, landscapers and developers can include breach of contract and/or implied warranties, professional negligence, strict liability, nuisance, and fraud. However, each type of claim may carry  different Statutes of Limitations.

For example, actions based upon breach of a written contract, generally, must be filed four years from the date a written contract was "breached" (two years for a verbal contract).   Conversely, actions based upon negligence, regarding property, generally must be commenced within three years from the time the claim arises.

Actions based upon fraud, including the intentional concealment of the defects, generally carry a limitations period of three years from the date the fraud is discovered.  Under certain circumstances, claims against engineers and real estate agents may be limited to two years.

When a claimant seeks recovery for personal injuries, the period of limitation is one year from the date the injury occurs.

Actions based on latent defects, involving a developer, contractor and certain other construction professionals may carry a specific statutory "maximum" Statute of Limitations of ten (10) years from the date of substantial completion of the project.  However, this ten year maximum period may not govern, if there has been willful misconduct or fraudulent concealment by the wrongdoer.  This maximum period is also extended when there are causes of action for personal injuries or wrongful death; the Statute of Limitations will be for one full year from the date of injury, even if the one year period expires beyond the ten year maximum period.  There are some other exceptions that, also, will extend the maximum ten year period.

There are many other Statutes of Limitations that we have not mentioned here.  The most important thing to remember about Statutes of Limitations is that a claimant's failure to file a lawsuit, before the expiration of the applicable limitations period, will bar that claim thereafter, regardless of its merits.   Given the potential involvement of different limitations periods arising out of different theories of law that may be embodied in the claim you have described, it is important that you immediately consult with your attorney for specific guidance and counsel, in order to ensure that no further time affecting your rights is allowed to unnecessarily elapse.

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05/21/99    Fd 367