REALWorld Law


Limitation period

During what period of time following execution of a construction contract may a party to that agreement bring a claim in the courts for breach of contract?

United States

United States

The times within which a party to a contract may bring a claim generally are imposed by state statutes if the parties do not provide otherwise in their construction contracts. As such, the times differ from state to state in the US and there are different limitation periods for different types of cause of action.

For example, in Illinois, the statute of limitations for construction defects is four years (735 ILCS 5/13-214(a)) and the statute of repose is 10 years (735 ILCS 5/13-214(b)). Together, these Illinois statutes provide that a person must bring a claim within four years of learning of the defect (statute of limitations) but in any event must bring the claim within ten years of substantial completion of the project (statute of repose). The Illinois statute of repose also provides an extension: if the defect is learned of anytime within the 10-year statute of repose, then the entity still has four years to bring a claim from the time of learning of the defect, even if the 10-year statute of repose is exceeded. Not all states, however, permit extensions for late-discovered defects. As indicated above, the requirements vary from state to state.

Parties in Illinois also may agree to a different limitation period, as long as reasonable. To illustrate, AIA documents generally provide that construction defects must be brought within ten years of substantial completion, with no provision for an extension. Thus, if parties in Illinois use an AIA document and want to provide for the extension allowable by Illinois law, the parties could modify the applicable provisions in the AIA document. Absent modification, the parties to such AIA document would not be entitled to the four-year extension granted by the Illinois statute of repose.

No matter what the limitation period is, it is necessary to determine at the outset of any new claim whether the limitation period has expired. If it has, the claim will be barred, and the claimant may be prevented from bringing a claim against the alleged wrongdoer. The defendant will be able to plead the defence of limitation, and the claimant will have the burden of proving that the cause of action arose within the relevant statutory period.