For those of you reading this blog who are familiar with Colorado’s law as it pertains to construction defect actions, which I assume to be anyone reading this blog as it does not seem to get much random traffic, you are probably aware that the statute of repose applicable to construction defect actions in Colorado is generally thought of as being six plus two years. Specifically, C.R.S. § 13-80-104 states, in pertinent part:
(1)(a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
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(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
Senate Bill 15-091, introduced on January 14th and assigned to the State, Veterans, and Military Affairs Committee, would change these provisions to read: (1)(a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than sixTHREE years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
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(2) In case any such IF A cause of action SUBJECT TO THIS SECTION arises during the fifth SECOND or sixthTHIRD year after substantial completion of the improvement to real property, said THE action shallMUST be brought within two years ONE YEAR after the date upon which saidTHE cause of action arises.
While I have not seen yet the reaction to this bill from the construction defect plaintiffs’ attorneys, other than Heidi Storz’s quotes in the recent Denver Business Journal articleby Ed Sealover, I imagine that it will receive a strong and determined opposition. I assume that one of the arguments we will hear will refer to a paper published years ago by the Colorado Association of Geotechnical Engineers, according to which, damage to homes suffering from the effects of expansive soils typically manifests somewhere between the fourth and seventh years after substantial completion. The argument I assume to be coming will be that builders are trying to insulate themselves from these types of cases by cutting off owners’ rights to seek redress before they even know they have problems. We will continue to watch the legislature for bills impacting construction law in Colorado and will monitor the progress of such bills, including Senate Bill 91. I am not sure how far this bill will make it, but I hope that it does not cause too much distraction or confusion of issues if and when Senator Ulibarri introduces his attainable housing bill, thought to be coming soon and to be similar to last year’s effort, Senate Bill 14-220. 