§ 25-223 — Action on breach of warranty on improvements to real property

Nebraska § 25-223

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

(1) Any action to recover damages based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property, except improvements to real property subject to the Nebraska Condominium Act, shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. If such cause of action is not discovered and could not be reasonably discovered within such four-year period, or within one year preceding the expiration of such four-year period, then the cause of action may be commenced within two years from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than ten years beyond the time of the act giving rise to the cause of action.
(2)(a) Any action to recover damages based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property that is a condominium or part of a condominium project subject to the Nebraska Condominium Act shall be commenced within two years after any alleged act or omission constituting such breach of warranty or deficiency. If such cause of action is not discovered and could not be reasonably discovered within such two-year period, or within one year preceding the expiration of such two-year period, then the cause of action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than five years beyond the time of the act giving rise to the cause of action.
(b) Any action brought under this section shall also comply with section 76-890 .

Legislative History

Source: Laws 1976, LB 495, § 1; Laws 2020, LB808, § 40. Cross References: Nebraska Condominium Act, see section 76-825. Annotations: When homeowners contract with individual contractors for separate construction projects, the 4-year statute of limitations begins to run against each contractor on the date it substantially completes its project. McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021). If a contract is divisible, breaches of its severable parts give rise to separate causes of action, and the statute of limitations will generally begin to run at the time of each breach. If, however, a contract is indivisible, an action can be maintained on it only when a breach occurs or the contract is in some way terminated, and the statute of limitations will begin to run from that time only. Fuelberth v. Heartland Heating & Air Conditioning, 307 Neb. 1002, 951 N.W.2d 758 (2020). Where there is no claim that a builder failed to make repairs when requested to do so pursuant to an express warranty and the claim is based on the defective construction itself, the express warranty does not extend the statute of limitations. Adams v. Manchester Park, 291 Neb. 978, 871 N.W.2d 215 (2015). This section is a special statute of limitations applying to builders and contractors making improvements to real property. Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005). The statute of limitations in this section applies only to actions brought against contractors or builders. Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992). Under this section, a cause of action accrues, and the statute of limitations begins to run, when there has been discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery. Smith v. Butler Manuf. Co., 230 Neb. 734, 433 N.W.2d 493 (1988). Under the discovery principle, a cause of action accrues and the 2-year discovery provision of this section begins to run when there has been discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery. It is not necessary that the plaintiff have knowledge of the exact nature or source of the problem, but only knowledge that the problem existed. Board of Regents v. Lueder Constr. Co., 230 Neb. 686, 433 N.W.2d 485 (1988). The 10-year period of repose contained in this section is constitutional. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987). This section applies to an action in tort for personal injuries caused by the negligent construction of a building. Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987). The period of repose applicable to a general contractor is found in this section and begins to run when construction of the structure is completed. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985). Where the plaintiff knew of a leaky roof problem more than four years before bringing suit, the cause of action was barred. Kearney Clinic Bldg. Corp. v. Weaver, 211 Neb. 499, 319 N.W.2d 95 (1982). The statute of limitation for an action based on alleged deficiencies in improvements to real property does not run during the time when the plaintiff reasonably could not discover the existence of the cause of action. Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979).