Some states recognize the doctrine expressed in English as “no time runs against the king” and in Latin as “nullum tempus occurrit regi.” The doctrine arises from time to time when a state agency seeks to recover against a private company on a claim that would in ordinary circumstances have long since been extinguished by a statute of limitations. Connecticut affirmed this doctrine in the recent past. Now, the New Hampshire Supreme Court has held that the doctrine applies only to the state, and not to municipalities. Thus, NH cities and towns are bound to statutes of limitation that would apply to private parties.

The City of Rochester had a water tank built and placed in service in 1985. In 2009, the city contracted for an interior coating. Only two years later, the tank developed a leak. The city filed suit against the coating company in 2012, and then in 2014 amended its lawsuit to include the designer and contractor from the 1985 project. They both moved to dismiss the lawsuit as barred by the statute of limitations, but the city defended on the argument that it could avail itself of the doctrine noted above.

The NH Supreme Court has disagreed with the city. It noted that the doctrine of nullum tempus occurrit regi protects the state in many instances where the state may not recognize the incursion on public rights and public property for a lengthy period of time (examples were attempted adverse possession or violation of a state law giving rise to the state’s right to assess a penalty or fine). In contrast, the city was entering into contracts, and thus in a position to protect its interests on a contemporaneous basis and to know right away if the contract at issue had been breached. Further, the NH high court noted that cities and towns were not protected by the doctrine of sovereign immunity, as another example of a legal distinction between rights afforded to the state and those afforded to municipalities.

So the city’s claim in 2014 against the engineer and contractor for the original work in 1985 was time-barred, and the city could not argue its way around that bar with the nullum tempus doctrine. The case is City of Rochester v. Marcel A. Payeur, Inc., 2016 N.H. LEXIS 233 (Dec. 13, 2016).