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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33370
Experience:  Began practicing law in 1992
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I live in a subdivision that has not been finished by the

Customer Question

I live in a subdivision that has not been finished by the builder. We have been told that we have 3 years in which to sue but I am concerned that there might be rules that apply limiting the right to sue from one year from the date of discovery. Is there such a statute? Would that need to be spelled out in my closing paperwork or is there a general statute that applies? I need to clarify whether 3 years or one year applies.
Submitted: 1 year ago.
Category: Legal
Expert:  Sam replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

Please clarify, what is your lawsuit for?

Customer: replied 1 year ago.
There is no lawsuit filed as yet. The last house in the subdivision was completed Feb. 28, 2015 and the road and retention pond are not completed. There have been negotiations with the builder, a major builder, but I am concerned that there might be a one year discovery limit and the builder keeps delaying the "fixes".
Expert:  Sam replied 1 year ago.

Thank you.

There is a 3 years SOL at this LINK on contracts and/or fraud. And it states:

§ 1-52. Three years. Within three years an action -

(1) Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections or in G.S. 1-53(1). (1a) Upon the official bond of a public officer.

(2) Upon a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it. (3) For trespass upon real property. When the trespass is a continuing one, the action shall be commenced within three years from the original trespass, and not thereafter.

(4) For taking, detaining, converting or injuring any goods or chattels, including action for their specific recovery.

(5) For criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.

(6) Against the sureties of any executor, administrator, collector or guardian on the official bond of their principal; within three years after the breach thereof complained of.

(7) Against bail; within three years after judgment against the principal; but bail may discharge himself by a surrender of the principal, at any time before final judgment against the bail.

(8) For fees due to a clerk, sheriff or other officer, by the judgment of a court; within three years from the entry of the judgment, or the issuing of the last execution thereon.

(9) For relief on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

(10) Repealed by Session Laws 1977, c. 886, s. 1. (11) For the recovery of any amount under and by virtue of the provisions of the Fair Labor Standards Act of 1938 and amendments thereto, said act being an act of Congress. (12) Upon a claim for loss covered by an insurance policy that is subject to the three-year limitation contained in G.S. 58-44-16.

Expert:  Sam replied 1 year ago.

The statute of limitations for a suit on a breach of contract or if there is fraud, does not need to be specifically stated in your contract. It is in NC Statute and that is all you need. It is not one year from the date of discovery. Though that would be helpful if you were to discover a concern after the 3 years from the date of the contract.

Customer: replied 1 year ago.
I don't think that statute would apply since it is a general statute on contracts (I don't know if it is a NC statute) and this would fall under real estate law.
Customer: replied 1 year ago.
At the top of the page it says, limitations OTHER THAN REAL PROPERTY.
Expert:  Sam replied 1 year ago.

Ok. But you said it was for surrounding areas like a pond and roads. Is this for something within your home ?

Expert:  Sam replied 1 year ago.

Fraud is a crime in North Carolina, but is also subject to civil suit to recover damages caused by the fraud. In North Carolina, plaintiffs must bring their claim to a court within three years of the fraudulent activity, or they may lose their claim.

Customer: replied 1 year ago.
No, it's not within my home. It's within a subdivision of 22 homes. I am concerned that the builder could have put language in our contracts that overrides the three year limit and replace it with one year from discovery.
Expert:  Sam replied 1 year ago.

Thank you. Then you need to review the contract for any type of such language, because that would be illegal. The builder has to go with the Law and the law is 3 years.

But I will opt out and another professional here may be able to provide more information for you.

Thank you and good luck

Expert:  Dwayne B. replied 1 year ago.

I see the other expert opted out so I thought I would see if I could assist.

What is your specific question?

Customer: replied 1 year ago.
Is there any way that a builder in NC could insert language in a contract (major builder with expensive lawyers) that would override the 3 year limitation for owners in a subdivision to sue over a road and retention pond that are not completed, now 11 months after the last house closed? I am concerned about any exceptions that might fall under a one year since discovery issue.
Expert:  Dwayne B. replied 1 year ago.

That isn't a question that hasn't be absolutely decided by the courts so the answer, for now, must be yes, it is possible that two parties can agree to change the statute of limitations by way of contract. However, in reality it would be extremely difficult for someone under the facts you describe to do so.

The statute of limitations given by the other expert is correct, the breach of contract statute of limitations is the same for real estate contracts as well as other type of contracts.

The only way you're going to know for sure if they tried to change the statute of limitations is to take your contract to a local attorney and let them review the document.