Limitations of Actions and Suits

ORS 12.135
Action for damages from construction, alteration or repair of improvement to real property

  • “substantial completion” defined
  • application

(1)

An action against a person by a plaintiff who is not a public body, whether in contract, tort or otherwise, arising from the person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof, or from the person having furnished design, planning, surveying, architectural or engineering services for the improvement, must be commenced before the earliest of:

(a)

The applicable period of limitation otherwise established by law;

(b)

Ten years after substantial completion or abandonment of the construction, alteration or repair of a small commercial structure, as defined in ORS 701.005 (Definitions), a residential structure, as defined in ORS 701.005 (Definitions), or a large commercial structure, as defined in ORS 701.005 (Definitions), that is owned or maintained by a homeowners association, as defined in ORS 94.550 (Definitions for ORS 94), or that is owned or maintained by an association of unit owners, as defined in ORS 100.005 (Definitions); or

(c)

Six years after substantial completion or abandonment of the construction, alteration or repair of a large commercial structure, as defined in ORS 701.005 (Definitions), other than a large commercial structure described in paragraph (b) of this subsection.

(2)

An action against a person by a public body, whether in contract, tort or otherwise, arising from the person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof, or from the person having furnished design, planning, surveying, architectural or engineering services for the improvement, must be commenced not more than 10 years after substantial completion or abandonment of such construction, alteration or repair of the improvement to real property.
(3)(a) Notwithstanding subsections (1) and (2) of this section, an action against a person registered to practice architecture under ORS 671.010 (Definitions for ORS 671) to 671.220 (Civil penalties), a person registered to practice landscape architecture under ORS 671.310 (Definitions for ORS 671) to 671.459 (State Landscape Architect Board) or a person registered to practice engineering under ORS 672.002 (Definitions for ORS 672) to 672.325 (Civil penalties) to recover damages for injury to a person, property or to any interest in property, including damages for delay or economic loss, regardless of legal theory, arising out of the construction, alteration or repair of any improvement to real property must be commenced before the earliest of:

(A)

Two years after the date the injury or damage is first discovered or in the exercise of reasonable care should have been discovered;

(B)

Ten years after substantial completion or abandonment of the construction, alteration or repair of a small commercial structure, as defined in ORS 701.005 (Definitions), a residential structure, as defined in ORS 701.005 (Definitions), or a large commercial structure, as defined in ORS 701.005 (Definitions), that is owned or maintained by a homeowners association, as defined in ORS 94.550 (Definitions for ORS 94), or that is owned or maintained by an association of unit owners, as defined in ORS 100.005 (Definitions); or

(C)

Six years after substantial completion or abandonment of the construction, alteration or repair of a large commercial structure, as defined in ORS 701.005 (Definitions), other than a large commercial structure described in subparagraph (B) of this paragraph.

(b)

This subsection applies to actions brought by any person or public body.

(4)

For purposes of this section:

(a)

“Public body” has the meaning given that term in ORS 174.109 (“Public body” defined); and

(b)

“Substantial completion” means the earliest of:

(A)

The date when the contractee accepts in writing the construction, alteration or repair of the improvement to real property or any designated portion thereof as having reached that state of completion when it may be used or occupied for its intended purpose or, if there is no such written acceptance, the date of acceptance of the completed construction, alteration or repair of such improvement by the contractee;

(B)

The date when a public body issues a certificate of occupancy for the improvement; or

(C)

The date when the owner uses or occupies the improvement for its intended purpose.

(5)

For purposes of this section, an improvement to real property is considered abandoned on the same date that the improvement is considered abandoned under ORS 87.045 (Completion date of improvement).

(6)

This section:

(a)

Applies to an action against a manufacturer, distributor, seller or lessor of a manufactured dwelling, as defined in ORS 446.003 (Definitions for ORS 446), or of a prefabricated structure, as defined in ORS 455.010 (Definitions for ORS chapter 455); and

(b)

Does not apply to actions against any person in actual possession and control of the improvement, as owner, tenant or otherwise, at the time such cause of action accrues. [1971 c.664 §§2,3,4; 1983 c.437 §1; 1991 c.968 §1; 2009 c.485 §3; 2009 c.715 §1; 2013 c.469 §1; 2019 c.327 §1]

Notes of Decisions

The two-year statute of limitations began to run as of the date on which the injury to the plaintiff’s property occurred rather than the date when the plaintiff discovered who actually caused the injury. Kashmir Corp. v. Barnes, 278 Or 433, 564 P2d 693 (1977)

Implied warranty by builder-vendors that new houses are constructed in reasonably workmanlike manner and fit for habitation, established by Yepsen v. Burgess, 269 Or 635, 525 P2d 1019 (1974), is subject to limitations of this section. Sponseller v. Meltebeke, 280 Or 361, 570 P2d 974 (1977)

Action for breach of express warranty against seller of apartments and glass company, which contracted to repair defective windows, was not barred by two year statute of limitations under this section, which contemplates tort rather than contract actions. Portland Hous. Auth. v. Ash Nat’l., 36 Or App 391, 584 P2d 776 (1978)

This section was inapplicable to damage action against architect and heating contractor for financial losses resulting from defective heating system. Securities-Intermountain v. Sunset Fuel, 289 Or 243, 611 P2d 1158 (1980)

Where action for damages by purchaser against builder-seller of house was for amounts necessary to remedy defects in construction of house, limitation period of this section was not applicable because action was not for bodily injury or injury to existing tangible property. Beveridge v. King, 292 Or 771, 643 P2d 332 (1982)

Equitable estoppel is not available to avoid time limitation of this section because to hold otherwise would thwart legislature’s intent to provide absolute cutoff date for bringing actions to which statute applies. Beals v. Breeden Bros., Inc., 113 Or App 566, 833 P2d 348 (1992), Sup Ct review denied

Ten-year statute of repose applies retroactively. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F3d 1255 (9th Cir. 1993)

Where defendant acted in dual capacity of manufacturer and installer of asbestos products, limitation on actions applicable to construction, alteration and repair of real property was superseded by ORS 30.907 limitation on asbestos product liability. Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 959 P2d 89 (1998), modified 155 Or App 1, 963 P2d 729 (1998), Sup Ct review denied

Where contractor builds own house, lack of “contractee” prevents application of this section as statute of ultimate repose for construction defect. Lozano v. Schlesinger, 191 Or App 400, 84 P3d 816 (2004)

“Contractee” is person, usually owner or developer, for whom improvement is constructed, altered or repaired. Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or App 24, 295 P3d 62 (2012), aff’d 355 Or 286, 325 P3d 730 (2014)

Repose period runs from date on which general contractor transfers control of completed improvement to contractee. Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or App 24, 295 P3d 62 (2012), aff’d 355 Or 286, 325 P3d 730 (2014)

In absence of written acceptance, substantial completion occurs when contractee accepts construction that actually has been completed. PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013), aff’d 355 Or 267, 323 P3d 961 (2014)

This provision applies to indemnity actions that ultimately derive from indemnitor’s construction-related activities. PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013)

Where plaintiff, who purchased home from general contractor and did not have construction contract but instead had only purchase contract, brought negligence action against defendant, 10 year statute of limitations in this section does not apply. Shell v. Schollander Companies, Inc., 265 Or App 624, 336 P3d 569 (2014), aff’d 358 Or 552, 369 P3d 1101 (2016)

Completion notice issued pursuant to ORS 87.045 does not establish that owner accepts construction as complete for occupation and does not establish date on which 10-year statute of ultimate repose begins to run. PIH Beaverton, LLC v. Super One, Inc., 355 Or 267, 323 P3d 961 (2014)

Law Review Citations

52 OLR 91-104 (1972); 54 OLR 466 (1975)

Source

Last accessed
Mar. 11, 2023

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