Nice Guys (Persons) Finish Last; Don't Forget Statutes of Limitations

Statutes of Limitations are not misspelled works of art by Rodin. They are laws limiting when you can sue someone, designed to discourage unreasonable delay in bringing civil lawsuits and criminal prosecutions. In general, an unexcused failure to start a case on time (within the required statutory period) legally prevents a court from hearing the case. While there may be some commonality, each state has different statutes of limitations. For a good summary of Ohio’s statutes of limitations, check out:

In the context of Ohio real estate, most of us remember that the statute of limitations for recovering real estate (ORC 2305.04) is 21 years, because adverse possession claims must be for 21 years or more. Other statutory time requirements impacting Ohio real estate actions are: fifteen years to sue on written contracts (ORC 2305.06); six years to sue on oral contracts (ORC 2305.07); two years for civil actions for bodily injuries and injuries to personal property (ORC 2305.10) and four years for civil actions for injury or damage to real property (ORC 2305.09).

In the recent case of Coughlin v. Acock Associates Architects, 2011 Ohio App (5th Dist.). LEXIS 2695, John Coughlin (the Plaintiff-Appellant) remembered to be nice (and perhaps a little naive), but forgot about the oral contract and real property damage statutes of limitations. In 1998, Coughlin had entered into an oral contract with Acock Associates Architects, LLC to design a new Master Bedroom addition to their home. They then engaged Michael Matrka, Inc. to do the construction. Coughlin testified that soon after completion of the project in 2002, water leaked from the windows and skylights. For a number of years thereafter, Coughlin hired a roofer to repair the leaks, but the leaks persisted, got worse, and caused structural damage. Coughin testified that the contractor told them they could expect maintenance issues after the construction due to the “unique and complicated characteristics” of their house.

Whether Coughlin was too nice to consider litigation earlier, too na├»ve in his belief of the contractor’s claims, or both, the result was the same: he waited too long. The Court explained that the four year property damage statute of limitations started when Coughlin first discovered the damage, or with reasonable diligence, should have discovered the property damage. Coughlin’s testimony clearly indicated the problems were discovered more than four years before the action was brought. The Court further explained that the six year oral contract statute of limitations begins when a plaintiff discovers the omission to perform as agreed. As soon as the structural damage occurred, Coughlin was deemed to have discovered that the design of a structurally sound addition with leak free skylights was certainly an omission to perform as agreed. Unfortunately for Mr. Coughlin, this discovery was more than six years prior to initiation of the lawsuit.

The morals of this story? First of all, oral contracts are “not worth the paper they are not written on”. Not only would a written contract help to better spell out and prove important details, the statute of limitations for written vs. unwritten contracts is fifteen vs. six years. Second, being a nice person is a laudable first step, but “know when to say when”. I have found that most architects and contractors do excellent work, and if there is a disagreement or problem, they are willing to work with you (in fact, in some construction situations, a short statutory work-out period is a required pre-requisite to litigation). However, if an amicable solution is not possible, litigation before eight years of raining inside your home, or at least before the applicable statute of limitations runs may certainly be warranted.

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