On December 19, 2014, in Christie v. Hartley Construction, Inc., the North Carolina Supreme Court held that a construction materials manufacturer had waived the protections of the North Carolina statute of repose by contracting for a 20-year warranty term (766 S.E.2d 283 (N.C. 2014)).

George and Deborah Christie (plaintiffs) decided to build a custom home in 2004. They contracted with Hartley Construction, Inc., a company that specialized in designing and building houses. Hartley suggested the plaintiffs use SuperFlex, an exterior cladding system designed to protect homes from moisture intrusion, marketed by GrailCoat. The plaintiffs conducted research and, relying on the 20-year full warranty stated on the GrailCoat website, elected to use SuperFlex. Hartley purchased the SuperFlex and hired a GrailCoat-certified installer who applied the product to the home. Orange County issued a Certificate of Occupancy for the residence on March 22, 2005.

Several years later, the plaintiffs began to notice cracks in the SuperFlex and moisture intrusion into their home. Further investigation revealed this moisture had compromised the structural integrity of the home. On October 31, 2011, the plaintiffs filed a complaint against Hartley and GrailCoat. The trial court granted the defendants' motions for summary judgment and dismissed the plaintiffs' complaint with prejudice.

The Court of Appeals affirmed the trial court's holding finding that, based on the March 2005 issuance of the Certificate of Occupancy for the home, North Carolina's six-year statute of repose for claims arising out of improvements to real property (N.C. Gen. Stat. Ann. § 1-50(a)(5)) had expired several months before the plaintiffs filed their complaint, thus barring the plaintiffs' claim for damages.

On Appeal, the Supreme Court reversed the Court of Appeals decision. The Court explained that while statutes of repose are intended to mitigate the risk of potentially limitless legal exposure, North Carolina has long recognized that parties generally are free to contract as they wish. As such, the Court saw no public policy reason why the beneficiary of a statute of repose cannot waive that benefit to attract business.

The Court therefore upheld the express warranty and rejected GrailCoat's assertion of a defense under the statute of repose. The Court explained that extending a warranty that a seller knows to be unenforceable is a sham, and instead found that GrailCoat knowingly and freely entered into a contract of sale with the plaintiffs in which it waived its protections of the statute of repose since:

The Court reversed the Court of Appeals in part by giving effect to the express warranty made by GrailCoat.

This case is important because it gives purchasers of construction materials confidence that the warranties advertised by sellers are enforceable. Sellers of construction materials in North Carolina should be advised that express warranties will be upheld even if they extend beyond the period of the statute of repose.