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NJ Trial Court Dismisses Condo Association's Defect Claims

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In late March, a trial court in Bergen County, New Jersey dismissed a condominium association's construction defect claims against several construction entities for failure to comply with the applicable statute of limitations. This decision's appellate aftermath will be interesting to follow, because the trial court stripped away some of the protection that New Jersey's discovery rule affords to property owners who become aware of latent defects well after a project is substantially completed.

Pursuant to the discovery rule, "a cause of action will be held not to accrue until the injury party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). And unlike some states, New Jersey's discovery rule applies in contract cases involving latent construction and design defects. Torcon, Inc. v. Alexian Bros. Hosp., 205 N.J. Super. 428, 432 (Ch. Div. 1985). What this means is that the statute of limitations for design deficiencies and construction defects begins to run upon substantial completion. Mahoney-Troast v. Supermarkets General, 189 N.J. Super. 325, 329 (App. Div. 1983).

In Palisades at Fort Lee Condo. Ass'n v. 100 Palisade, 2014 N.J. Super. Unpub. LEXIS 743, *3 (Law Div. Mar. 31, 2014), construction was deemed substantially complete on May 1, 2002. The Association hired a consultant to perform inspections in November 2006, and in May 2007, the consultant issued a report identifying various construction and design defects. The Association, however, did not file a Complaint until March 2009, almost seven years after the date of substantial completion. The trial court held that although the Association's claims may not have accrued until May 2007, when it received the report, it still had until May 2008 to file suit. The trial court stated, "[i]t has been well established in New Jersey case law that if the plaintiff has sufficient knowledge of its claim and there remains a reasonable time under the applicable limitations period to commence a cause of action, the action will be time barred if not filed within that remaining time." Id. at *8. One of the reasons the court dismissed the Complaint is because the Association had one year to file suit after becoming aware of its potential claims.

The Palisades court cited to Torcon (another trial court opinion) for this proposition, although the Torcon court's holding in this regard related to application of equitable estoppel in the context of a contractor's misrepresentation or concealment of material facts. By contrast, the intent of New Jersey's discovery rule is to toll the accrual of the statute of limitations, and the Association's six-year statute of limitations should have commenced in May 2007, if that is the date when it knew or should have known that it may have claims arising out of defective construction.

Nevertheless, the Palisades decision should give pause to property owners and their attorneys to carefully monitor early signs of faulty workmanship, and to not assume that the discovery rule will automatically extend the six-year time period to bring claims for construction defects. A Notice of Appeal has been filed in Palisades and it will be interesting to see how the Appellate Division handles this issue.

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Perspectives on Real Estate Newsletter (Fall 2012 Edition)

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The 22nd edition of Pillsbury's Newsletter: Perspectives on Real Estate features articles on energy consumption data reporting (AB1103 and 531), construction and risk management, new foreign tax withholding forms, chapter 9 and public-private partnerships.

Articles include:


The Fall 2012 Edition of Perspectives on Real Estate is edited by: Laura Hannusch, Peter Freeman, Christine Roch and Noa Clark and can be downloaded in its entirety by clicking here.

Perspectives on Real Estate Newsletter (Spring 2012 Edition)

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The 21st edition of Pillsbury's Newsletter: Perspectives on Real Estate features articles on green leasing, mineral rights, avoiding contstruction project failures and California's post redevelopment agency landscape. Articles include:

The Spring 2012 Edition of Perspectives on Real Estate is edited by: Laura Hannusch, Peter Freeman, Christine Roch and Noa Clark and can be downloaded in its entirety by clicking here.

New Year "ins" and "outs": Stanford is "out"; Cornell is "in"

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"In" and "out" of New York City that is. Roosevelt Island, in particular. Stanford withdrew its proposal to build a campus on New York City's Roosevelt Island and a week later, the City agreed to provide 10 acres to Cornell plus $100 million in infrastructure improvements; Cornell will build a $2 Billion campus on that property. You can read Mayor Bloomberg's quotes about it on Mayor Bloomberg's company's website here. (Surely there's an antitrust violation somewhere in there.)

New Yorkers hope that the project will keep high tech software from fleeing to the suburbs. Bloomberg (the site -- not the mayor) quotes the president of the New York City Economic Development Corporation as saying, "Software and applications need the kind of dense expertise that cities are full of." If Pinsky is right, maybe Roosevelt Island will be the next Silicon Valley.

Cornell hired Skidmore, Owings & Merrell to design the project and it's estimated that it will generate 20,000 construction jobs. It's a bit early to say who the lucky 20,000 workers will be -- or who their employer will be. Stay tuned.

Money in search of a Project

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A funny thing happened at a recent ENRNewYork infrastructure conference titled Where's the Money? -- they found some. During a panel discussion concerning infrastructure financing, both Robert Dove, Managing Director, The Carlyle Group and Christophe Petit, President, Star America Infrastructure Partners, told the large audience that they had "money to spend" on infrastructure projects. Indeed, both men suggested that they were eager to find an infrastructure project in which to invest.

Interestingly, both men were looking for very different project profiles. Mr. Dove stated a desire to invest in brown field projects only, whereas Mr. Petit wants green field projects. Given the amount of money these two men represent, there is a very attractive opportunity for the promoter of the right project.

In light of this and the money Presidents Obama and Clinton have pledged to raise for infrastructure projects (see Michael McNamara's 11/5/11 entry), perhaps some should be saying Show me the Project!!.