This judgment illustrates how a claim that has been advertised becomes obsolete because one is not careful to cancel the limitation period in time. The judgment illustrates in a good way how the court considers the start of the deadline when it comes to the ordinary limitation period of 3 years, cf. Section 3 (2) of the Statute of Limitations, cf. § 3. In addition, the judgment provides good guidance on how to act in order to benefit from the additional period of 1 year, cf. the statute of limitations section 10 no. 1.
The dispute itself was between a developer (NBU) who had built an apartment building with 46 apartments and a parking basement, and the ground contractor (ABS).
In the fall of 2019, a backlash occurred in the gutter in the basement of the apartment building. The Eiersektionssameiet engaged Høytrycksvakta AS, which submitted a report dated 27.11.2019. It was apparent from the report that the High Pressure Watch had observed a backlash against the manhole, and a possible failure of the check valve was pointed out.
The condominium complained to the NBU on 18.12.2019 by sending the report from the High Pressure Guard. NBU then forwarded the complaint to ABS on 21.2.2020.
In August/September 2020, ABS removed the check valve, but without this helping.
A new report was then prepared on 15.2.2021 that described counterfalls, and the parties agreed that the cause of sewage backlogs were swans in the pipes.
The NBU prepared a settlement complaint against ABS on 12.3.2021 which was submitted to the Conciliation Council on 17.12.2021. A subpoena was then taken out on 30.6.2022, but without it being relevant to the case.
The Court of Appeal concluded that the settlement appeal of 12 March 2021 cancelled the limitation period — to the extent that the limitation period had not already occurred.
First, the Court of Appeal discussed the NBU had complied with the ordinary statute of limitations of 3 years.
Since the limitation period begins to run at the time at which the claimant could claim fulfillment at the earliest. In construction contracts, that will be the time of takeover.
In this case, there was neither a written contract nor a takeover protocol, nor had the parties engaged in any formal takeover business. Equally, the Court of Appeal concluded that the sewer lines had been taken over by the NBU “by November 2017".
When the Court of Appeal compared November 2017 with the settlement complaint lodged by the Conciliation Board on 17 March 2021, it concluded that this amounted to a period of 3 ½ years. Ergo, the ordinary statute of limitations of 3 years had expired, and the claim was obsolete.
In order for the NBU to retain a claim, the developer had to accept that the additional deadline of 1 year had not expired as of March 17, 2021.
The question that the Court of Appeal had to decide on was whether the NBU had or should have had knowledge of the deficiency and who was responsible earlier than 17.3.2020, possibly during the one-year period between 17.3.2020 and 17.3.2021.
The court concluded that the knowledge requirement had been met as early as 18.12.2019. It was at this time that the NBU received the report from the High Pressure Guard where it was stated that counteraction had been observed.
There was also nothing to indicate that the NBU considered anyone other than the ABS to be liable, and it was sufficiently clear that the NBU had a financial claim against the ABS in one sense or another.
In light of this, the Court of Appeal concluded that, as early as December 2019, the NBU had sufficient knowledge that one had a deficiency claim, and that ABS was the right addressee for the claim.
This meant that the additional deadline of 1 year expired in December 2020.
Since the settlement complaint was dated 12.3.2021 and received by the Conciliation Board on 17.3.2021, the claim was also obsolete using the additional deadline of one year.
By the way, we have written a separate article about the rules on complaints and limitation periods, which can be read here.
