Action for damages from construction, alteration or repair of improvement to real property
- “substantial completion” defined
- application
Source:
Section 12.135 — Action for damages from construction, alteration or repair of improvement to real property; “substantial completion” defined; application, https://www.oregonlegislature.gov/bills_laws/ors/ors012.html.
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of asbestos products, limitation on actions applicable to construction, alteration and repair of real property was superseded by ORS 30.907 limitation on asbestos product liability.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)
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