When a Louisiana property owner alleges that there was some defect in the construction of the property, he or she may want to pursue a lawsuit against the contractor. Contractors facing such actions should understand how patent versus latent defects affect how long a property owner has to bring a construction defect claim based on breach of contract.
A patent defect is one that can be found through an inspection of the property because it is open and obvious. A latent defect is one that cannot be found through a reasonable inspection, since it is hidden or concealed. Latent defects will transform into patent defects once the defect is uncovered or should have been uncovered.
This distinction is important, because Louisiana follows the “discovery rule” when it comes to bringing a breach of contract claim on construction lawsuits. The statute of limitation for such claims begins running when the breach was either discovered or reasonably should have been discovered. So, if the defect at issue is latent, the statute of limitations does not begin running until the plaintiff either discovers or reasonably should have discovered the defect. Louisiana has a 10-year statute of limitations, also known as a liberative prescription, for claims brought against contractors for construction defects.
So, if a contractor is facing a breach of contract claim, he or she may be able to argue that the claim was not brought within the applicable liberative prescription period. If a defect was obvious or if the property owner’s own negligence prevented him or her from discovering the defect, and more than 10 years have passed, contractors may want to determine whether the property owner is barred from bringing a breach of contract claim.