The limitation prescribed by this article shall not be asserted as a defense by any person who would otherwise be entitled to its benefits but who is in actual possession or control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency of such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.
§ 9-3-52.Limitation not available to owner or tenant
Chapter 3. Limitations of Actions · Article 3. Limitations on Recovery for Deficiencies Connected with Improvements to Realty and Resulting Injuries · Last amended 1968 · Last verified July 17, 2026
In one sentenceA person who would otherwise benefit from the construction-defect repose period cannot use it as a defense if that person was in actual possession or control of the improvement — as owner, tenant, or otherwise — at the time a deficiency in the improvement proximately caused the injury or death being sued over.
Full Text of § 9-3-52
Plain-English Summary
The eight- and ten-year repose periods in O.C.G.A. § 9-3-51 exist to protect designers, surveyors, and builders whose involvement with a project ended long ago. O.C.G.A. § 9-3-52 makes clear that protection does not extend to someone who was still in the driver's seat when the harm occurred.
If a person who would otherwise qualify for the repose defense was in actual possession or control of the improvement — whether as owner, tenant, or in some other capacity — at the time a deficiency in that improvement proximately caused the injury or death at issue, that person cannot raise the repose period as a defense. The statute treats ongoing possession or control as inconsistent with the rationale for repose, since the entity that controlled the property when the harm happened had the opportunity to discover and address the defect.
This section functions as a targeted exception rather than a broad rule: it does not eliminate the repose period generally, only bars a specific defendant from invoking it when that defendant was the one in possession or control of the defective improvement at the moment the harm occurred.
Frequently Asked Questions
Who loses the benefit of the construction-defect repose period under this section?
Anyone who would otherwise be entitled to the repose defense but who was in actual possession or control — as owner, tenant, or otherwise — of the improvement when the deficiency proximately caused the injury or death.
Does this section apply to a contractor who sold the building years ago and no longer controls it?
No. The exception targets whoever was in actual possession or control of the improvement at the time the deficiency caused the harm, not a party who had already relinquished possession or control.
Can a tenant lose the benefit of the repose defense under this section?
Yes. The statute specifically lists a tenant, along with an owner, as examples of a person in possession or control who cannot assert the defense.
What has to be shown for this exception to apply?
That the deficiency in the improvement was the proximate cause of the injury or death, and that the person invoking the repose defense was in actual possession or control of the improvement at that time.
Does this section create a new claim, or just limit a defense?
It limits a defense. The section does not create liability on its own; it prevents a person in possession or control from asserting the repose period found in O.C.G.A. § 9-3-51 as a defense.
Amendment History
Ga. L. 1968, p. 127, § 4.
Source & verification. Section text and amendment history are
reproduced verbatim from the Official Code of Georgia Annotated, published by the
Official Code of Georgia Annotated, Georgia Code Revision Commission / LexisNexis. Last verified July 17, 2026.
· Official source
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