The common law doctrine of nullum tempus occurrit regi roughly translates to “no time run against the king.” In the past, that doctrine was enforced when courts determined whether government agencies were barred by the same statutes of limitations as private citizens when bringing claims for undisclosed defects in a real estate sale. However, this principle has since been limited by the statute of limitations for governmental bodies to bring claims.
N.J.S.A. 2A: 14-1.1 (“the statute”) was enacted in the 1960s to limit the potential liability to which architects and building contractors, among others, were increasingly subject. Rosenberg v. North Bergen, 61 N.J. 190, 194 (1972). Its purpose was to define substantive rights for these professionals, such as the right not to have to have to defend ancient claims or obligations. Cyktor v. Aspen Manor Condominium Ass’n¸359 N.J. Super. 459 (App. Div. 2003). The statute was designed so as to provide “repose” for such professionals from all claims arising out of construction or design defects of a hazardous nature ten years after the work was completed.
In 1995, the court found that the nullum tepus doctrine did not apply to the state or its agencies. State v. Cruz Constr. Co, 279 N.J. Super. 241 (App. Div. 1995). Cruz, as well as other similar decisions, prompted the state legislature to amend the statute in order to clarify that it was meant to apply to claims by both private citizens as well as government agencies.
The statute reads: “No action, whether in contract, tort, or otherwise, to recover damages for any deficiency…shall be brought against any person performing or furnishing the design…to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall serve as a bar to all such actions, both governmental and private, but shall not apply to actions against any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.” N.J.S.A. 2A: 14-1.1
The amendment also enumerates four governmental actions that the statute does not bar. Id. at 14-1.1(b). The statute does not bar an action by a governmental unit:
1) on a written warranty, guaranty or other contract that expressly provides for a longer effective period;
2) based on willful misconduct, gross negligence or fraudulent concealment in connection with performing or furnishing the design, planning, supervision or construction of an improvement to real property;
3) under any environmental remediation law or pursuant to any contract entered into by a governmental unit in carrying out its responsibilities under any environmental remediation law; or
4) pursuant to any contract for application, enclosure, removal or encapsulation of asbestos.
Id. at 14-1.1(b).
The statute defines “governmental” as “the state, its political subdivisions, any office, department, division, bureau, board, commission or public authority or public agency of the state or one of its political subdivisions, including but not limited to, a county or a municipality and any board, commission, committee, authority or agency which is not a State board, commission, committee, authority or agency.” Id. at 14-1.1(c).
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