The Clock You Can't See: What Atkinson v. City of Livingston Teaches Montana Homeowners About Deadlines
A Montana Supreme Court decision on the ten-year statute of repose — and why waiting to act can end a construction claim before it begins
Related attorney: Jean Meyer
If you own a home built on a problematic lot, a recent Montana Supreme Court decision delivers a hard but important lesson: even a strong-sounding claim can be lost if too much time has passed. Atkinson v. City of Livingston is not a homeowner victory — it is a cautionary tale. And understanding why the homeowners lost may be the most valuable thing you take from it.
The Case: Atkinson v. City of Livingston
In Atkinson v. City of Livingston, 2026 MT 21, 588 P.3d 1232, a couple sued the City of Livingston over the home they built in the Ridgeview Trails subdivision. Years earlier, a geotechnical report had identified expansive and collapsible soils in the subdivision — the kind of soil conditions that can cause foundations to shift and crack over time. That report, however, was prepared for the developer and its consultants, not for the City, and was never given to the homeowners when they bought their lot in 2012.
The homeowners' contractor obtained a building permit from the City in November 2012, the City performed the inspections required by the building code during construction, and in June 2013 the City issued a Statement of Substantial Completion. In July 2021, the homeowners noticed cracking and structural problems. In late 2023 and early 2024 they discovered the old geotechnical report and related soil correspondence, and in April 2024 they sued the City for negligence and negligent misrepresentation, arguing it should have disclosed what it knew about the soils.
Why the Claims Were Barred
The Court never reached the question of whether the City did anything wrong. It didn't have to. Montana's statute of repose, found at § 27-2-208, MCA, bars any action for damages "arising out of the design, planning, supervision, inspection, construction, or observation of construction" of an improvement to real property once more than ten years have passed since the improvement was completed.
A statute of repose is different from, and stricter than, an ordinary statute of limitations. A statute of limitations typically starts running when you discover (or reasonably should have discovered) a problem. A statute of repose is an outer deadline that runs from a fixed event — here, the City's Statement of Substantial Completion in June 2013 — regardless of when the defect actually appears or is discovered. Montana treats it as a substantive grant of immunity: once the ten years expire, the liability is simply extinguished.
Because the homeowners' claims arose out of the City's permitting and inspection activities, and because they were filed in 2024 — more than ten years after substantial completion in 2013 — the Court held they were too late. It also rejected each of the narrow statutory exceptions the homeowners tried to invoke, including arguments based on a written instrument, an injury occurring in the tenth year, and the responsibility of a party in control of the property. Notably, the Court confirmed the statute protects municipalities too — the Legislature wrote no exception carving cities out.
The Lesson for Homeowners and Associations
The painful takeaway from Atkinson is that the strength of a claim does not matter if the deadline has already run. The homeowners may well have had a compelling story about undisclosed soil conditions — but the repose clock had been running quietly since 2013, and by the time they connected the dots in 2024, the window had closed.
This is why the timing of a construction defect claim is not a detail to leave for later. A statute of repose can bar a claim even before a homeowner realizes anything is wrong. If cracking, settlement, water intrusion, or other structural symptoms appear — or if you suspect that adverse conditions were known but never disclosed — the time to have your rights evaluated is immediately, not after you have finished gathering every document.
Don't Let the Clock Decide for You
Construction defect claims in Montana are governed by both statutes of limitations and this outer statute of repose, and both run in the background whether or not anyone is investigating. If you are a homeowner or serving on an HOA or COA board and you have noticed structural problems — or have reason to believe a builder, developer, or public entity knew about a defect and didn't disclose it — do not wait to find out where you stand.