2015 ORS 12.135¹
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 94.550 to 94.783), 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 671.010 to 671.220) to 671.220 (Civil penalties), a person registered to practice landscape architecture under ORS 671.310 (Definitions for ORS 671.310 to 671.459) to 671.459 (State Landscape Architect Board) or a person registered to practice engineering under ORS 672.002 (Definitions for ORS 672.002 to 672.325) 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 94.550 to 94.783), 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 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.

(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 446.003 to 446.200 and 446.225 to 446.285 and ORS chapters 195, 196, 197, 215 and 227), 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]

Note: Section 2, chapter 469, Oregon Laws 2013, provides:

Sec. 2. The amendments to ORS 12.135 (Action for damages from construction, alteration or repair of improvement to real property) by section 1 of this 2013 Act apply only to causes of action arising on or after the effective date of this 2013 Act [January 1, 2014]. [2013 c.469 §2]

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 (Action for damages from asbestos-related disease) 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 (Completion date of improvement) 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)

Chapter 12

Notes of Decisions

An ac­tion for per­sonal injuries caused by breach of implied warranty is clearly one for which "different limita­tion is prescribed by statute" under ORS 12.010 (Time of commencing actions) and thus is not governed by pro­vi­sions of this chapter. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973)


1 Legislative Counsel Committee, CHAPTER 12—Limitations of Actions and Suits, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors012.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 12, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano012.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.