(1) The limitation provided by this part must not be asserted as a defense by any person in actual possession or the control, as owner, tenant, or otherwise, of an improvement at the time any deficiency in the improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action, arbitration, or other binding dispute resolution proceeding.
(2) The limitation provided by this part is not available as a defense to any person who has been guilty of fraud in performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying, in connection with an improvement, or to any person who wrongfully conceals any such cause of action.