Ark. Code Ann. § 16-56-112 (2026)
Design, planning, supervision, or observation of construction, repair, etc. — Actions for property damage, personal injury, or wrongful death
- No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property or for injury to real or personal property caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
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- No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement.
- Notwithstanding the provisions of subdivision (b)(1) of this section, in the case of personal injury or an injury causing wrongful death, which injury occurred during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, irrespective of the date of death, but in no event shall such an action be brought more than five (5) years after the substantial completion of construction of such improvement.
- The foregoing limitations shall also apply to any action for damages caused by any deficiency in surveying, establishing, or making the boundaries of real property, the preparation of maps, or the performance of any other engineering or architectural work upon real property or improvements to real property.
- The limitations prescribed by this section shall not apply in the event of fraudulent concealment of the deficiency, nor shall the limitation be asserted by way of defense by any person in actual possession or control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in the improvement constitutes the proximate cause of the injury or death.
- If a person furnishes designs or plans which are not used within three (3) years from the date they are furnished, no action shall lie against that person for deficiency in the designs or plans.
- Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any cause of action, nor shall the parties to any contract for construction extend the above prescribed limitations by agreement or otherwise.
- As used in this section, the term “person” shall mean an individual, corporation, trust, partnership, unincorporated organization, limited liability company, or any other business association or entity.
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- It is the intent of the General Assembly and the purpose of this subsection to reinstate and to codify the accepted-work doctrine for publicly owned improvements to public property, which was repudiated by the Arkansas Supreme Court in Suneson v. Holloway Construction Co., 337 Ark. 571 (1999).
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- A contractor who performs the construction or repair of any publicly owned improvement to public real property in substantial compliance with the designs or plans, after a practical acceptance of the completion of the improvement by the person representing the government entity in actual possession or control thereof as proprietor, owner, tenant, or otherwise, shall incur no further liability to third parties by reason of the condition of the work unless contracted otherwise by the parties.
- The contractor may be liable for an improvement that is a nuisance per se, or that contains a defect that could not reasonably be detected on inspection by the proprietor, or that was turned over by the contractor in a manner so negligently defective as to be eminently dangerous to third persons.
History. Acts 1967, No. 42, §§ 1-8; A.S.A. 1947, §§ 37-237 — 37-244; Acts 2001, No. 1119, §§ 1, 2.
A.C.R.C. Notes. Acts 2001, No. 1119, § 3, provided: “This act shall not apply to any case based upon facts which occurred prior to the effective date of this act.” The effective date of Acts 2001, No. 1119, is March 27, 2001.
Amendments. The 2001 amendment, in (g), inserted “trust,” “limited liability company” and “or entity”; and added (h).
Research References
ALR.
What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations. 122 A.L.R.5th 1.
Ark. L. Notes.
Looney, When Third Means Fourth, Contract Includes Tort, and a Five-Year Statute of Limitation Actually Leaves Only Three Years or Less to File Suit: The Strange Saga of the Arkansas “Statute of Repose” in Construction Cases, 1993 Ark. L. Notes 87.
U. Ark. Little Rock L.J.
Paul, The Law of Construction Bonds in Arkansas: A Review, 9 U. Ark. Little Rock L.J. 333.
Survey, Contracts, 14 U. Ark. Little Rock L.J. 329.
Seventeenth Annual Survey of Arkansas Law — Torts, 17 U. Ark. Little Rock L.J. 453.
U. Ark. Little Rock L. Rev.
Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.
Luke K. Burton, Note: Property Improvement Claims—A History and Recommendation for Arkansas's Lone True Statute of Repose, 35 U. Ark. Little Rock L. Rev. 415 (2013).
Case Notes
Constitutionality.
This section does not grant special privileges or immunities in violation of Art. 2, § 18, of the Arkansas Constitution, as a vital distinction exists between owners or suppliers and those engaged in the professions and occupations of design and building. Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S. Ct. 868, 27 L. Ed. 2d 800 (1971).
This section is not a special law in violation of Art. 5, § 25, or Amendment 14 of the Arkansas Constitution because it is limited to those furnishing design or construction for improvements to real estate. Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S. Ct. 868, 27 L. Ed. 2d 800 (1971).
In General.
Subdivision (b)(1) of this section is a substantive statute. Brown v. Overhead Door Corp., 843 F. Supp. 482 (W.D. Ark. 1994).
Construction.
The phrase “in contract” should be construed in the light of the legislative purpose and the language of the preamble to Act 1967, No. 42 to extend the coverage of this section to all actions which arise out of a construction contract where property damage has allegedly resulted from any deficiency in design, planning, supervision, or observation of construction, or the construction and repair of any improvement to real property. Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983).
The legislature simply made a mistake when it used “third” instead of “fourth” in the phrase “occurred during the third year after the substantial completion” in subdivision (b)(2). Dooley v. Hot Springs Family YMCA, 301 Ark. 23, 781 S.W.2d 457 (1989).
There is no exception in subsection (a) for residential property, and the statute does not give the purchaser of residential property a reasonable length of time to bring suit. Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1997).
Because this section provided a statute of repose on actions to recover damages caused by a deficiency in the construction of an improvement to real property, and the instant case involved an alleged breach of an indemnity provision in a construction contract, the statute did not apply; if the legislature wants to expand the protection afforded by the statute of repose to include indemnity actions arising from construction work, it may wish to amend the statute. Ray & Sons Masonry Contrs., Inc. v. United States Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003).
Because a statute of repose is not an affirmative defense, the failure to plead it as an affirmative defense is not a bar to raising the issue on appeal; thus, the court considered the issue on appeal as claimed by a subcontractor. Ray & Sons Masonry Contrs., Inc. v. United States Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003).
Purpose.
The legislative purpose of this section was to enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit. Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983).
Applicability.
The manufacturers of mass produced fungible goods do not fall within the protection of subdivision (b)(1) of this section, particularly when the defendant manufacturer is not involved in the installation of the product and had nothing to do with the design of the improvement within which it is installed. Brown v. Overhead Door Corp., 843 F. Supp. 482 (W.D. Ark. 1994).
In a breach of contract action for alleged architectural defects, in which a written contract was involved, § 16-56-111(b) was the applicable statute of limitations; the existence of this section did not extend the statute of limitations under § 16-56-111(b) or otherwise affect its applicability. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996).
Summary judgment was properly granted in favor of a construction company in a negligent construction case because a lawsuit was not filed until after the three-year period in § 16-56-105(3) had run; there was no evidence that the company had performed any repairs or that repairs were done on its behalf, and, even if repair work had been done on the company's behalf, the statute of limitations would have only been tolled during the period of repairs, which was not of sufficient length to render the claim timely. Without proof of the attempted repairs, the statute of repose in subsection (a) of this section did not come into play, and there was no tolling of the three-year statute of limitations. Marshall v. Turman Constr. Corp., 2012 Ark. App. 686 (2012).
Circuit court did not err by allowing a property owner's negligence case to go to the jury because it was not barred by the statute of repose. The claim was not one for personal injury or wrongful death; rather, the claim was solely based on property damage. Platinum Peaks, Inc. v. Bradford, 2015 Ark. App. 548, 473 S.W.3d 70 (2015).
Action Barred.
Plaintiff's action in contract was filed more than five years after substantial completion of subcontractor's work and was barred by this section. Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983).
Suit for damage to shop brought more than five years after shopping center was built was barred by this section. Elliotte v. Johnson, 285 Ark. 383, 687 S.W.2d 523 (1985).
In directing the verdict, the trial court properly found no evidence of fraudulent concealment that would have tolled the statute of limitations found in subsection (a) of this section; the homeowner testified that, upon inspecting the house with a realtor prior to purchasing it in 1991, he noticed cracks along mortar joints and in the sheet rock caused by the expanding and contracting soil, and the fact that the homeowner discussed the problem with the builder in 1994 showed that he had sufficient knowledge to commence the running of the statute of limitations. Curry v. Thornsberry, 81 Ark. App. 112, 98 S.W.3d 477 (2003), aff'd, 354 Ark. 631, 128 S.W.3d 438 (2003).
Trial court properly directed a verdict for home builder because, although the home buyers offered some proof of the defective condition of the home, they offered no evidence to indicate that the builder engaged in some positive act of fraud to toll the statute of limitations; moreover, the buyers knew that the house had defects before they purchased it. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).
Where the residence was constructed in 1987, but appellant's suit was not filed until 1995, in the absence of fraudulent concealment of the alleged deficiencies in construction of their home, appellant's suit was barred as of 1992 by the statute of limitations found in subsection (a) of this section and the builder was properly granted a directed verdict. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).
Because subsection (f) of this section unambiguously prohibited the parties to a construction contract from extending, by agreement or otherwise, the five-year-limitations period set forth in subsection (a), the architect and designer were properly awarded partial summary judgment in an owner's breach of contract action. First Elec. Coop. Corp. v. Black, Corley, Owens & Hughes, P.A., 2011 Ark. App. 447 (2011).
Even though they relied on a written builder's warranty, the crux of homeowners' complaint was that they were damaged by the defective construction of their house. This fit squarely within this section, the statute of repose, and therefore their action brought more than five years after the home was completed was barred. Varadan v. Pagnozzi, 2012 Ark. App. 700 (2012).
Statute of repose barred a school district's breach of warranty, breach of contract, and negligence claims against a supplier of roofing materials used in construction of a school building; the building was substantially completed more than five years before the suit was filed, and the statute was not tolled while the supplier tried to repair the roof because there was no evidence that the supplier fraudulently concealed the roof's deficiencies. Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 844 F.3d 1011 (8th Cir. 2017).
Breach of Implied Warranty.
The five-year limit imposed by subsection (a) applies to claims for breach of the implied warranty of habitability of a dwelling even where the alleged breach was not discovered until after the limitations period had run. Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1997).
There is an implied warranty of fitness and habitability in the sale of a new house which extends to the subsequent purchasers of the home. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).
Improvement to Real Property.
For action for damages resulting from breach of contract when equipment failed, the equipment constituted an improvement to real property although not bolted or otherwise attached to the building where it was interconnected with other parts of machinery and equipment of the plaintiff and therefore the limitation of this section governed. Cherokee Carpet Mills, Inc. v. Manly Jail Works, Inc., 257 Ark. 1041, 521 S.W.2d 528 (1975).
Subsection (a) clearly establishes a maximum five-year period within which an injured party can bring suit against a person who deficiently constructs or repairs an improvement to real property which commences after the substantial completion of the improvement, but, in bringing such a suit, the injured party must still bring the action within the statute of limitations for that type of cause of action. If the breach or injury occurs immediately after the completion of the improvement, the injured party must still comply with § 16-56-105(3) and bring his action within three years from when the breach occurs but not later than the five-year period provided in subsection (a). East Poinsett County Sch. Dist. No. 14 v. Union Std. Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990).
Retaining wall was an “improvement.” 65th Ctr., Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992).
Cited: Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); City of Hot Springs v. National Sur. Co., 258 Ark. 1009, 531 S.W.2d 8 (1975); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).