The Third District Court of Appeal in Covenant Baptist Church, Inc. v. Vasallo Construction, Inc. in an opinion filed on May 22, 2019, held that an owner was barred by the statute of limitations from filing a lawsuit for a defective roof when the owner knew of roof leaks more than 4 years prior to filing suit even if the owner did not have knowledge of the specific defect.
In the Vasallo Construction case, the evidence showed that the owner had knowledge of roof leaks in 2006 but did not file suit until 2011. As such, the court affirmed the final judgment on appeal. In reaching this holding, the appellate court cited a string of cases which found that the 4-year statue of limitations run from the time that the owner first notices roof leaks regardless of whether the owner knew of the specific defect that caused the leaks.
The holdings of the Vasallo Construction case and the cited cases are significant as the owner’s knowledge of a defect is usually a factual issue to be determined by the jury. However, the cases specifically hold that as a matter of law an owner’s knowledge of a roof leak puts the owner on notice of a defect. Further, to avoid the statute of limitations most plaintiffs claim that a defect was latent and therefore they had no notice of the defect prior to the expiration of the 4-year statute of limitations. The “latent” defect argument is clearly irrelevant under the Vasallo Construction case and cited cases when an owner had knowledge of a roof leak.
As such, it is important to direct early discovery tailored to an owner’s knowledge of roof leaks to posture a case for a motion for summary judgment. This includes non-party subpoenas to the homeowner’s insurance company for roof leak claims, the seller’s real estate agent for a seller disclosure and buyer’s inspection report (if plaintiff is subsequent purchaser), and a property management company (if Association is involved).