Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.
When termite damage is discovered years after a structure was built — and when the damage is traceable to construction deficiencies like inadequate pretreatment, wood-to-ground contact, or improper drainage — the lawsuit may face a different time bar altogether: the statute of repose. Unlike the statute of limitations, which begins running on discovery, the statute of repose begins running on a fixed event (typically substantial completion of construction) and extinguishes the claim absolutely — regardless of whether the plaintiff knew or could have known of the defect. Understanding when the repose bar applies, when it does not, and how it interacts with service-contract claims is essential in both Alabama and Florida termite litigation involving new construction or pretreated properties.
Alabama: Article 13A and the Seven-Year Repose Period
Ala. Code §§ 6-5-220 through 6-5-225 — Article 13A of Chapter 5, Title 6 — establish a specialized limitations and repose scheme for actions against architects, engineers, and "builders." The scheme imposes two overlapping time constraints:
Two-year statute of limitations. Ala. Code § 6-5-221(a) requires all civil actions (in tort, contract, or otherwise) against covered architects, engineers, and builders to be brought within two years of accrual. For latent defects, the cause of action "accrues or arises" at the time the damage "is or in the exercise of reasonable diligence should have been first discovered," per Ala. Code § 6-5-220(e). Dickinson v. Land Developers Constr. Co., 882 So. 2d 291, 297 (Ala. 2003).
Seven-year statute of repose. Ala. Code § 6-5-221 bars all causes of action — regardless of when they accrue — if they would accrue more than seven years after substantial completion of construction of the improvement. See Ala. Code § 6-5-225(d) (where a cause of action accrues during the seventh year, the plaintiff retains two years from accrual even if this extends beyond the seven-year period). The repose bar is absolute as to covered defendants: no claim may be brought, even for latent damage undiscoverable until after the period expires, against the architect, engineer, or builder who completed the work.
The actual knowledge exception. The repose period does not apply if, prior to its expiration, the architect, engineer, or builder had "actual knowledge that such defect or deficiency exists and failed to disclose such defect or deficiency to the person with whom the [defendant] contracted to perform such service." Ala. Code § 6-5-221 (as confirmed in legislative history at alison.legislature.state.al.us/SB59-Enr.pdf). A builder or pretreater who discovers inadequate pretreatment during the repose period, says nothing, and allows the repose period to pass cannot rely on the bar.
Who Is a "Builder" Under Article 13A?
The critical — and frequently dispositive — question in termite construction-defect cases is whether the pest control company that performed pretreatment of a new structure qualifies as a "builder" entitled to the protection of Article 13A's repose period. The answer is almost certainly no.
Ala. Code § 6-5-220(a) defines "builder" as "[a]ny individual, partnership, firm, or corporation that constructed, or performed or managed the construction of, an improvement, or any portion thereof, on or to real estate, and at the time of the construction was licensed as a general contractor in the State of Alabama." (Emphasis added.) A pest control company holding only a Department of Agriculture structural pest control permit is not licensed as a general contractor. It does not "manage construction" in the Article 13A sense. And the broader definition of "improvement on or to real property" under § 6-5-220(g) — while encompassing "machinery, equipment and other improvements" — is more naturally read to refer to permanent structural additions rather than chemical soil treatments.
The Alabama Court of Civil Appeals considered a related issue in the context of mechanic's liens and concluded that "pest control services are not a lienable contribution" to an improvement to real property. Guaranty Pest Control, Inc. v. Commercial Inv. & Dev. Corp., 264 So. 2d 163 (Ala. Civ. App. 1972). While the lien context is distinct from Article 13A, the reasoning — that pest control services do not constitute construction of an improvement — is directly applicable to the repose question.
For plaintiff's practitioners, the practical implication is that Article 13A's seven-year repose period generally does not shield pest control companies from termite damage claims arising from negligent pretreatment. The company is subject to the general two-year limitations period under Ala. Code § 6-2-38(l) (for negligence and wantonness) or the six-year period under § 6-2-34(9) (for breach of contract), with the discovery rule available for both.
The general contractor who hired the pest control company to perform pretreatment as a subcontractor is a different question. If the builder is a "builder" within Article 13A's definition — which requires a general contractor license — and the plaintiff's claim against the builder is that it failed to ensure adequate pretreatment as part of the construction project, then Article 13A's repose period applies to that claim, and the seven-year clock runs from substantial completion of the structure.
Florida: Fla. Stat. § 95.11(3)(b) and the Seven-Year Repose Period
Florida underwent significant changes to its construction-defect statute of repose through 2023 legislation (S.B. 360, effective April 13, 2023). Current Fla. Stat. § 95.11(3)(b) provides:
"An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date the authority having jurisdiction issues a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion, or the date of abandonment of construction if not completed, whichever date is earliest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 7 years after the date the authority having jurisdiction issues a [certificate of occupancy or completion], or the date of abandonment of construction if not completed, whichever date is earliest."
The prior law — which set the repose period at ten years, running from the latest of possession, CO issuance, abandonment, or contract completion — was amended to a seven-year period running from the earliest of CO issuance or abandonment. This change substantially shortened the repose window for older projects and eliminated the triggering-event flexibility that allowed plaintiffs to find the most favorable start date.
Grace period impact. The 2023 amendments contained a limited grace period: claims that would have been viable under the old ten-year period but became barred by the new seven-year period were required to be filed no later than July 1, 2024. Any such claim not filed by that date is permanently barred.
Fraud extension. Florida Statute § 95.11(3)(b) preserves a two-year extension where "fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury," but this extension is itself capped at seven years from the triggering event — so the fraud extension does not allow claims to survive the repose period if the concealment was not discovered within the absolute outer limit.
Termite Claims as Construction Defect vs. Service Contract Breach
The characterization of a termite damage claim as a "construction defect" (triggering repose protection for builders) versus a "service contract breach" (subject only to ordinary limitations periods) is the pivot point in much of this litigation.
Pretreatment as construction defect. Where the pest control company performed pretreatment of a new structure as part of the construction process — applying soil termiticide before the foundation was poured — and the pretreatment is alleged to have been inadequate, the claim arguably sounds in construction defect. In that configuration, the general contractor may be protected by repose if Article 13A applies to it, and the pest control subcontractor's liability depends on whether it qualifies as a "builder."
Annual service contract as independent breach. Where the homeowner holds an ongoing termite bond and the claim is that the pest control company failed to detect and remediate an active infestation during successive annual inspections, the claim is unambiguously a breach of the service contract and sounds in negligence — not in the design, planning, or construction of the improvement. Neither Alabama's Article 13A nor Florida's § 95.11(3)(b) applies; the ordinary limitations periods govern.
The hybrid case. Many termite cases involve both: the company performed the initial pretreatment during construction, issued a bond, performed annual inspections, and failed repeatedly to detect the damage its inadequate pretreatment enabled. In these cases, the repose bar may preclude the construction-defect theory while leaving the service-contract and negligent-inspection theories fully viable.
Repose vs. Limitations: The Critical Distinction
The statute of repose is not a limitations period. It is a substantive extinguishment of the claim itself, not merely a procedural bar to its enforcement. This means:
- No tolling. The repose period cannot be tolled for minority, disability, fraudulent concealment, or any other equitable doctrine (absent the actual-knowledge exception in Article 13A and the fraud extension in Florida's statute).
- No discovery rule. The repose period runs from substantial completion regardless of when the damage was discovered. A plaintiff who discovers termite damage ten years after a Florida structure was completed cannot use the discovery rule to escape the seven-year repose period under § 95.11(3)(b).
- Absolute bar. Courts have no equitable discretion to extend the repose period. See Dickinson, 882 So. 2d at 297 (Legislature's intent to create absolute bar confirmed in § 6-5-225 language).
Practice Notes
In any Alabama or Florida termite case involving new construction or pretreatment, immediately:
- Determine the substantial completion or CO issuance date and calculate whether the relevant repose period has run.
- Assess whether the defendant pest control company qualifies as a "builder" under Article 13A's definition (Alabama) or whether the claim is "founded on the design, planning, or construction of an improvement" (Florida).
- If the repose period has run on the construction-defect theory, confirm whether independent service-contract and negligent-inspection claims survive under the ordinary limitations periods.
- In Florida, note the 2023 shift from a ten-year to seven-year repose period and the July 1, 2024 grace-period deadline for transitional claims.
Closing
The repose defense is formidable because it is immune to equitable arguments that would defeat a limitations bar. The plaintiff's response is structural: argue the defendant is not within the protected class, characterize the claim as service contract breach rather than construction defect, and invoke the actual-knowledge exception where the defendant suppressed known defects during the repose period. Get the case filed quickly and leave nothing on the table.
Talk to Yates Anderson
If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.