The Colorado Court of Appeals has ruled if a contractor attempts to repair a defect it could inadvertently trigger an extension of the applicable statute of limitations for the duration of the repair. Although the case, Highline Village Associates v. Hersh Companies, Inc. [No. 98CA1886, 1999 WL 976682 (Colo. App. 1999)], is specific to Colorado it does have broader implications.

In Highland Village Associates a building owner hired a painting contractor to repaint an existing structure. The contractor finished the work in August 1992 but by June 1994 the paint had peeled. The owner demanded the contractor repaint the building. The contractor finished repainting in November 1994 but by March 1995 the paint peeled again. In spring 1995 the contractor refused to do any more repainting. The owner sued the contractor in October 1996, 27 months after the problem first appeared.

Colorado has a special statute of limitations that applies to architects, contractors, builders, engineers, and others in construction-related professions that says all claims relating to construction or improvements must be brought within 24 months after the physical manifestation of a defect is discovered. The statute doesn’t address whether the time period continues to run during any attempted repairs.

The trial court dismissed the owner’s claims based on the Contractors Statute of Limitations. The Court of Appeals, however, reversed the trial court. In addition, the appeals court adopted the repair doctrine, which states that if a contractor repaired a defect “and in doing that either expressly or implicitly promised or represented that the repairs would remedy the defect and that owner reasonably relied on such promise or representation and as a result did not institute legal action against the contractor, the limitations period of the contractor’s statute will be tolled until the date that the contractor abandoned its repair efforts.”

How to Protect Yourself
The first and best way to avoid claims of defective work is to repair real or perceived defects. In those circumstances when you don’t intend to do any more remedial work and want the statute of limitations to begin running, don’t do anything the owner could construe as ongoing repairs, promises of repairs, or promises that the repairs will remedy the defect. The best way to make this very clear is through a letter or another form of written communication.