This chapter addresses issues associated with the construction and sale of new residential housing. It provides an overview of pertinent definitions; statutory requirements for residential contracts; residential construction claims and related issues including methods of dispute resolution, preclaim requirements, and the different types of claims and defenses available; and recoverable damages for residential construction claims. Special considerations specific to condominiums and planned communities, such as townhomes, are set forth in § 9.6 to § 9.6-4.

§ 9.2 DEFINITIONS

In Oregon, the regulation of the construction and sale of residential housing depends, in part, on the entities and the type of structure involved. Thus, statutory definitions are especially important. These definitions determine when circumstances give rise to statutory protections or requirements. Therefore, the lawyer should take care to remain familiar with statutory definitions and their consequences. This section surveys the various statutorily defined terms that may be implicated in the construction and sale of residential housing.

There are three different statutory definitions of residential housing with consequences for liens, mandatory notices, warranties, or the types of claims available. If a particular structure conforms to a statutory definition, the builder, the seller, and the buyer should be aware of the statutorily created requirements, limitations, and rights that flow therefrom.

First, the term residential structure is defined to include the following:

(A) A residence that is a site-built home;

(B) A structure that contains one or more dwelling units and is four stories or less above grade;

(C) A condominium, rental residential unit or other residential dwelling unit that is part of a larger structure, if the property interest in the unit is separate from the property interest in the larger structure;

(D) A modular home constructed off-site;

(E) A manufactured dwelling;

(F) A floating home as defined in ORS 830.700; or

(G) An appurtenance to a home, structure, unit or dwelling described in subparagraphs (A) to (F) of this paragraph.

ORS 701.005(15)(a). The term residential structure does not include the following:

(A) Subject to [subparagraph (C) above], a structure that contains both residential and nonresidential units;

(B) Transient lodging;

(D) A state or local correctional facility;

(E) A youth correction facility as defined in ORS 420.005;

(F) A youth care center operated by a county juvenile department under administrative control of a juvenile court pursuant to ORS 420.855 to 420.885;

(G) A detention facility as defined in ORS 419A.004;

(H) A nursing home;

(I) A hospital; or

(J) A place constructed primarily for recreational activities.

ORS 701.005(15)(b).

If a structure is a residential structure under this definition, then a contractor involved in building, remodeling, or repairing the structure must fulfill licensing requirements, include specific types of warranties, and provide specific types of notices to purchasers under the Construction Contractors Licensing Act (Or Laws 1989, ch 928, codified at ORS ch 701). This definition of a residential structure also carries with it requirements of the owner (defined in ORS 701.560(3)). For instance, if there is a defect in the construction, remodel, or repair of a residential structure, the owner must follow the notice-of-defect procedure set forth in ORS 701.565.

The second definition pertaining to residential housing is residential building under the Construction Lien Law, ORS 87.001–87.093. A residential building is a “building or structure that is or will be occupied by the owner as a residence and that contains not more than four units capable of being used as residences or homes.” ORS 87.021(3)(b)(B). If a structure is a residential building, then the contractor must provide the owner with notice of a right to a lien under the Construction Lien Law. ORS 87.021(1).

Note: Under its formal definition, the Construction Lien Law does not include ORS 87.070 (describing the amount of recovery by a contractor and delineating the respective rights of the contractor and the owner). See ORS 87.001. However, like the statutes that are formally included in the Construction Lien Law, ORS 87.070 applies to residential contractors. For purposes of simplicity, we refer to the Construction Lien Law as including all the statutes in the range of ORS 87.001 to 87.093.

Third, residential property includes “a residential dwelling and the driveways, swimming pools, terraces, patios, fences, porches, garages, basements, other structures and land that are adjacent or appurtenant to a residential dwelling.” ORS 87.093(8)(c). This definition applies for purposes of determining whether a contractor must provide an “Information Notice to Owner,” as required by the Construction Contractors Board, under ORS 87.093(2).

Note: Oregon’s “prompt payment” statutes (ORS 701.620 to 701.640) do not apply to contracts involving a “building that is subject to the Low-Rise Residential Dwelling Code,” ORS 701.645(1), which regulates the construction of residential dwellings that are three stories or less above grade and larger than 400 square feet, ORS 455.610(1).

Certain types of residential structures listed in ORS 701.005(15)—condominiums and floating homes—are also defined by statute. Condominiums are further defined in the Oregon Condominium Act (ORS chapter 100). ORS 100.005(9) (2017) (effective through December 31, 2019); ORS 100.005(11) (2019) (effective beginning January 1, 2020). Residences within the Oregon Planned Community Act (ORS 94.550–94.783) also have separate definitions. See, e.g., ORS 94.550(27) (defining unit).

Residential structures may be subject to one or more warranties, which may be expressly provided in a contract, required by a statute, or implied by common law (e.g., warranties of habitability and workmanlike performance). Certain regulated structures such as condominiums have statutorily required warranties. See § 9.6-2 for further discussion of condominium warranties.

The extent to which the buyer or the owner was involved in the project is important because different warranties may apply depending on whether the structure is a speculative (spec) home or a custom-built home. A structure is speculative if it was constructed “in anticipation of or with the intent of selling to another entity during or after construction.” OAR 812-002-0680. Spec homes, including townhomes, have implied warranties. See § 9.3-2 to § 9.3-2(b).

Terms such as contractor, subcontractor, real estate licensee, and construction design professional are also statutorily defined. See, e.g., ORS 87.005(4), (11) (contractor and subcontractor), ORS 696.010(21) (real estate licensee), ORS 31.300(1) (construction design professional). These definitions are important because the type of professional involved in a dispute regarding a residential construction project determines the type of preclaim notice required and the applicable statute of limitations.

§ 9.3 RESIDENTIAL CONTRACTS

§ 9.3-1 Statutory Contract Provisions

The Construction Contractors Board (CCB) provides minimal mandatory contractual and warranty provisions to be included in residential construction contracts. See chapter 18 for a full discussion of the CCB’s role in construction disputes. For example, a contractor must have a written contract with the property owner if the project price exceeds $2,000. ORS 701.305(1). The written contract or attached addendum to the contract must be legible, in dark ink, and include the following items: (1) The contractor’s name, address, phone number, and CCB license number; (2) an acknowledgement of a written offer of warranty, if an offer is required under ORS 701.320 (new residential structure or zero-lot-line dwelling) and an indication of whether the warranty was accepted or rejected; (3) an explanation of the property owner’s rights under the contract (i.e., the ability to file a claim with the CCB after providing a notice of intent to do so, and the existence of any mediation or arbitration clause in the contract), set forth in a conspicuous manner; (4) the customer’s name and address; (5) the address where the work is to be performed; (6) a description of the work to be performed; and (7) price and payment terms. OAR 812-012-0110.

CCB forms are available online at <www.oregon.gov/CCB/contractor/Pages/requirednotices.aspx>.

§ 9.3-2 Implied Contract Provisions

Regardless of whether a builder–seller’s contract for the sale of a new residential structure expressly contains a term requiring workmanlike performance or a warranty of habitability of the residential structure, such terms are implied and enforceable. Yepsen v. Burgess, 269 Or 635, 640–41, 525 P2d 1019 (1974).

§ 9.3-2(a) Reasonable Workmanlike Performance

An implied duty of workmanlike performance is imposed on all construction work. See § 9.3-2. The duty requires that the work be done in an “ordinarily skillful manner, as a skilled workman should do it.” Newlee v. Heyting, 167 Or 288, 292–93, 117 P2d 829 (1941) (quoting Moss v. Best Knitting Mills, 190 NC 644, 130 SE 635, 637 (1925)). As described in Holland v. Rhoades, 56 Or 206, 210, 106 P 779 (1910),

[g]ood and workmanlike manner means in such a way that a workman of average skill and intelligence, the conscientious workman, would do the job. It is good average work . . . taking a man of average skill, not a wood-butcher on one hand, nor the very highest skill on the other, but a man of fair average skill as a carpenter; what a man of fair average skill would do.

There is no statutory definition of what constitutes workmanlike performance.

Failure to perform in a workmanlike manner supports an independent breach-of-contract claim. Metro. Prop. & Cas. v. Harper, 168 Or App 358, 369, 7 P3d 541(2000). It also supports a separate negligence claim. Fessler v. Quinn, 143 Or App 397, 403, 923 P2d 1294 (1996) (home inspection contract). Generally, the claimant must establish the standard to which the contractor should be held. See Yepsen v. Burgess, 269 Or 635, 641, 525 P2d 1019 (1974) (“A more precise definition of the scope of this warranty must await delineation on a case by case basis.” (footnote omitted)). The standard may simply be the approved practice in the industry. Moffet v. Ginther, 76 Or App 326, 329, 709 P2d 714 (1985) (defendant admitted that it was not “approved practice” to build houses with defects like those in plaintiffs’ house). The workmanlike standard is commonly established through the use of expert witnesses. See, e.g., Barton v. Maxwell, 106 Or App 583, 587, 809 P2d 1340, rev den, 312 Or 80 (1991) (expert testimony that HVAC design, selection, and installation were inadequate for house).

The standard may also be inferred based on the defendant’s own previous conduct. For example, in the Moffet case, the defendant contractor failed to install a sump pump in the drainage system for a house built for the plaintiffs. The defendant routinely installed sump pumps in other homes, and there was sufficient evidence that the defendant employed a higher standard of construction regarding other homes that it had built. The failure to satisfy the workmanlike standard rendered the contractor liable for the resulting damages.

§ 9.3-2(b) Implied Warranty of Habitability

Residential contracts for the sale of new spec homes include an implied warranty of habitability. Yepsen v. Burgess, 269 Or 635, 640–41, 525 P2d 1019 (1974) (builder breached implied warranty of fitness when home’s septic and drain field system were constructed defectively). The implied warranty of habitability is essentially an application of the implied warranty of fitness for purpose—a residence is built for the purpose of habitation. There is no precise standard of habitability, but the court in Yepsen identified a “but for” relationship between the defect and the habitability of the home: “The use of the house is so dependent upon the proper disposition of waste through a properly operating septic tank and drain field system that the house would not be habitable without them.” Yepsen, 269 Or at 642. See also Cabal v. Donnelly, 302 Or 115, 122, 727 P2d 111 (1986) (“[T]he purchaser enters into the contract for the purpose of buying a place to live. If the finished structure is not habitable, the purpose of the contract is defeated.”).

For rental properties, the Oregon Residential Landlord and Tenant Act (ORS chapter 90) statutorily defines habitability. See ORS 90.100(13) (defining essential service). Custom-built houses do not carry with them a warranty of habitability. Chandler v. Bunick, 279 Or 353, 357–58, 569 P2d 1037 (1977). See § 9.4-3(c) for a full discussion of this issue.

§ 9.3-3 Express Warranties

Residential construction contracts may be required by law to contain certain express warranties. Determining the nature and extent of the available warranties is frequently a threshold issue when defects are discovered after a house has been constructed. Multifamily dwellings such as condominiums and planned communities present unique warranty issues. For example, condominiums are subject to specific statutorily required express warranties with associated timelines. ORS 100.185. Contracts for the construction of residential structures and zero-lot-line dwellings must offer express warranties against defects in materials and workmanship to the owner or original purchaser. ORS 701.320(1).

A contractor may present the express warranties for recording in the county deed records. The warranties remain in place for 10 years and benefit and burden subsequent owners of the residential structure or zero-lot-line dwelling. ORS 701.605.

§ 9.3-4 Limitations and Disclaimers

Residential construction contracts may involve drafting, negotiating, and interpreting various limitations and disclaimers. The different types are discussed in § 9.3-4(a) to § 9.3-4(c).

§ 9.3-4(a) Liability Limitations

A disclaimer or waiver limiting liability is valid if it is bargained for, is brought to the other party’s attention, and is clear and conspicuous. Atlas Mut. Ins. Co. v. Moore Dry Kiln Co., 38 Or App 111, 114, 589 P2d 1134 (1979) (provision was conspicuous because it was located in the middle of a one-page contract, not “hidden in small print” within a long document, and because it began with a boldfaced disclaimer of all warranties). In Wilkinson v. Carpenter, 276 Or 311, 319, 554 P2d 512 (1976), the court found that absent a showing of actual fraud, the purchasers of a restaurant were bound by the as-is provision in their contract with the seller, which stated that there were no express or implied warranties. In Commerce & Indus. Ins. Co. v. Orth, 254 Or 226, 227–29, 458 P2d 926 (1969), the insurance company sought to recover damages from a contractor from windstorm loss. The contract between the building owner and the roofing contractor included a waiver of liability, up to the amount covered by insurance. The court held that the waiver was sufficiently clear to rebut the presumption of unenforceability of waivers of liability for negligence. Orth, 254 Or at 231–32.

Whether a particular disclaimer is conspicuous is generally a question of law. The particular requirements imposed by the conspicuous standard in the residential construction context are unclear.

The standard for enforceability of disclaimers is heightened somewhat when one party seeks to contract away liability for its own negligence in advance of any harm. Some construction contracts, such as the contract between the builder and the original owner, and the sales agreement between the original owner and a subsequent purchaser, may include as-is clauses and waivers of liability. The question of whether such clauses can defeat common-law negligence claims is frequently litigated. The court may enforce waivers or disclaimers of liability for negligence in “limited circumstances.” Estey v. MacKenzie Eng’g, Inc., 324 Or 372, 376, 927 P2d 86 (1996); cf. Cowan v. Nordyke, 232 Or App 384, 387–90, 222 P3d 1093 (2009), rev den, 348 Or 114 (2010) (court declined to hold that availability of bargaining opportunities means that, as a matter of law, an owner–builder of a house owes no duty of care to subsequent buyers, beyond disclosing known defects).

In the Estey case, the plaintiff contracted with the defendant to inspect a home that the plaintiff intended to purchase. The contract between the parties limited the defendant’s liability to the amount of the contract—$200—but the plaintiff sought to recover the cost of repairing the extensive structural damage to the house that the inspection failed to reveal—$340,000. The court analyzed the enforceability of the contractual limitation on liability according to a three-part inquiry: whether the limitation was conspicuous, whether it was clear and unequivocal, and whether it violated public policy. If the limitation on liability is not clear and unequivocal, or if the court finds it is ambiguous, the court will presume against immunity from negligence. Indeed, in Estey, the court did just that: it held that the term liability could reasonably be construed in several different ways and thus could not immunize the defendant from liability for its own negligence.

The Oregon Supreme Court has more recently analyzed negligence waivers in Bagley v. Mt. Bachelor, Inc., 356 Or 543, 340 P3d 27 (2014) (enforceability of a ski area’s anticipatory release).

Practice Tip: Kaste v. Land O’Lakes Purina Feed, LLC, 284 Or App 233, 239–47, 392 P3d 805, rev den, 361 Or 671 (2017), surveys different waiver-of-liability provisions that the Oregon courts have held to be either sufficient or insufficient to waive negligence, as well as breach-of-contract and warranty claims.

§ 9.3-4(b) Timing Limitations

A party may, by contract, impose limitations on the timeliness of actions. A contractual provision shortening the applicable statute of limitations may be enforceable, provided it is reasonable. Ausplund v. Aetna Indem. Co., 47 Or 10, 22, 81 P 577, reh’g den, 47 Or 22, 82 P2d 12 (1905) (“The parties to a contract may stipulate that an action for a breach of an agreement must be brought within a certain period, and, if such limitation is reasonable, it will be upheld.”). For example, the court enforced a contract provision that required a commercial subcontractor to bring any and all claims against the prime contractor within a one-year period. Biomass One, L.P. v. S-P Constr., 103 Or App 521, 525–26, 799 P2d 152 (1990). Timing limitations are not generally interpreted as liability waivers. See Wood Park Terrace Apartments Ltd. P’ship v. Tri-Vest, LLC, 254 Or App 690, 695–96, 297 P3d 494, rev den, 354 Or 62 (2013).

§ 9.3-4(c) Condominium Considerations

Oregon condominium law contains express provisions impacting limitations and disclaimers in contracts regarding the sale of condominiums. See § 9.6 to § 9.6-4.

§ 9.3-5 Alternative Dispute Resolution

Residential contracts may contain clauses limiting the methods of dispute resolution. For example, contracts may require the parties to use mediation first, or to submit their claims to arbitration. See Adair Homes, Inc. v. Dunn Carney Allen Higgins & Tongue, LLP, 262 Or App 273, 275–76, 325 P3d 49, rev den, 355 Or 879 (2014) (ambiguous arbitration clause in residential construction contract).

The scope of contract clauses regarding alternative dispute resolution is limited by common law and statute. The common-law limit is unconscionability. Statutorily, a contract for the performance of work on a residential structure cannot limit a person’s right to bring a claim before the CCB, although the contract may require arbitration or mediation of disputes. ORS 701.315. If a claimant files a complaint with the CCB, and the contractor fails to initiate mediation or arbitration within 30 days after the CCB notifies the contractor of the complaint, the contractor waives the contractual right to arbitration or mediation. ORS 701.180.

Some residential construction contracts refer warranty claims to third-party administrators and arbitration. These arbitrations must be analyzed under Oregon law. In Oregon, courts combine procedural and substantive elements of an arbitration clause into an overall test for unconscionability. The procedural element in Oregon is determined by unequal bargaining power and surprise during the bargaining process. Livingston v. Metro. Pediatrics, LLC, 234 Or App 137, 151, 227 P3d 796 (2010). Substantive unconscionability is determined according to the terms of the contract (rather than the formation of the contract). It generally involves deception, compulsion, or a lack of genuine consent, although relative fairness is usually involved as well. Carey v. Lincoln Loan Co., 203 Or App 399, 422–23, 125 P3d 814 (2005), aff’d, 342 Or 530, 157 P3d 775 (2007). In considering whether a contract or a contract term is unconscionable, the court may consider the relative bargaining power of the parties, whether it is a contract of adhesion, the sophistication of the contracting parties, and general considerations of public policy. Carey, 203 Or App at 425–26.

In Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or App 553, 567–70, 152 P3d 940 (2007), the court held that the arbitration clause was unconscionable because of the disparity in the parties’ bargaining power, the lender’s concealment of the full extent of its terms, the clause’s ban on class actions, and its cost-sharing provisions, which all favored the lender. Unconscionability may be offered as a defense to the enforceability of a contract or contract term, but is not grounds for an affirmative claim for damages. If the court deletes or limits the unconscionable provisions, it can then enforce the contract in a way that is not unconscionable. That deletion or limitation may give the previously disadvantaged party new rights under the contract, such as a claim for breach of contract that the party did not previously have. That claim for breach does not allow the plaintiff to recover separate damages for unconscionable conduct; it simply permits the plaintiff to enforce the contract as altered so that it is no longer unconscionable. Carey, 203 Or App at 424.

§ 9.4 RESIDENTIAL CONSTRUCTION CLAIMS AND RELATED ISSUES

Defects in design, construction, and subsequent sales transactions can give rise to claims for damages or specific performance. There are three venues for the resolution of design, construction, and real estate-related disputes: litigation, arbitration, and the CCB. The venue for resolution of a construction defect claim depends on the nature of the dispute, time constraints, and the claimant’s resources. Each venue requires different criteria of the claimant before filing a claim.

Sections § 9.4-1(a) to § 9.4-4(f) discuss the pros and cons of the three venues and their respective prefiling requirements, and touch on the various claims and defenses that may be available with respect to the design, construction, or sale of residential housing.

§ 9.4-1 Venues for Resolution

§ 9.4-1(a) Litigation

Litigation offers the claimant the ability to bring claims against all the relevant parties. In litigation, parties such as subcontractors and suppliers can be joined so that the court’s decision resolves the dispute in its entirety. Although bringing claims against multiple parties is at times a benefit to the claimant, it also poses a burden on the claimant because it tends to reduce focus and cause timing and scheduling difficulties. Case management becomes particularly crucial when there are multiple parties with first-party claims, third-party claims, and cross-claims.

§ 9.4-1(b) Arbitration

Arbitration may be required by statute or contract. Arbitration and litigation differ in many respects, but the most important difference in the context of resolving disputes regarding residential construction contracts is that litigation can involve all the parties—contractors, subcontractors, design professionals, and so on. Arbitration, on the other hand, generally involves only the parties to a specific contract or discrete dispute. That is, arbitration may provide only partial resolution to a particular dispute. Determinations made by an arbitrator in a binding arbitration may bind a trial court in related claims or appeals. See Westwood Constr. Co. v. Hallmark Inns & Resorts, Inc., 182 Or App 624, 636–37, 50 P3d 238, rev den, 335 Or 42 (2002) (arbitrator’s determination regarding breach-of-contract and quantum meruit claims along with date of substantial completion were binding on trial court). Claims not before the arbitrator, however, may be brought before a court. In Soren-Hodges v. Blazer Homes, Inc., 204 Or App 86, 89, 129 P3d 196 (2006), the claimants were not aware of the availability of additional claims at the time they brought their first claim before an arbitrator. That is, “the second claim could not have been brought with the first claim if the plaintiff did not have actual or constructive knowledge, when the first claim was tried, that the second claim existed and could be joined.” Soren-Hodges, 204 Or App at 94–95. Therefore, the claimants were not precluded from bringing additional claims before the court.

§ 9.4-1(c) Court-Annexed Arbitration

Each circuit court has a mandatory arbitration program for matters involving $50,000 or less. ORS 36.400(3).

“[A] party against whom relief is granted by the decision and award[,] or a party whose claim for relief was greater than the relief granted to the party by the decision and award, but no other party,” may choose to appeal the arbitration decision and award in a trial de novo. ORS 36.425(2)(a). If the defendant requests trial de novo and is not entitled to attorney fees by law or contract, but the defendant’s position does not improve, the defendant must pay the plaintiff’s attorney fees up to 20 percent of the judgment. ORS 36.425(4)(b), (5)(a). Similarly, if the plaintiff requests trial de novo and is not entitled to attorney fees by law or contract, but the plaintiff’s position is not improved, the plaintiff must pay the defendant’s attorney fees up to 10 percent of the amount claimed in the complaint. ORS 36.425(4)(b), (5)(b).

For discussion of court-annexed arbitration, see ADR in Oregon ch 8 (forthcoming OSB Legal Pubs 2019).

§ 9.4-1(d) Contract-Mandated Arbitration

Residential construction contracts may contain clauses that require the parties to submit their claims to arbitration. Arbitration clauses are enforceable absent a valid contractual defense such as fraud or misrepresentation regarding the arbitration clause. ORS 36.620(1). See the discussion of Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or App 553, 152 P3d 940 (2007), in § 9.3-5. Disputes regarding the enforceability of an arbitration clause or the arbitrability of the dispute are determined according to the Oregon Uniform Arbitration Act, ORS 36.600 to 36.740 and the Federal Arbitration Act (FAA), 9 USC sections 1 to 16. The FAA strongly favors enforcement of contractual arbitration agreements. Epic Systems Corp. v. Lewis, __ US __, 138 S Ct 1612, 1621, 200 L Ed 2d 889 (2018). See generally ADR in Oregon chs 10, 20 (forthcoming OSB Legal Pubs 2019) (legal bases and procedures for compelling or resisting ADR, ADR of construction disputes).

§ 9.4-1(e) Oregon Construction Contractors Board

The Construction Contractors Board (CCB) regulates the construction contracting industry by issuing licenses, offering dispute resolution services, and enforcing the law relating to unlicensed activities, fraud, and identity theft.

If a claim arises from the contractor’s performance, or a contract for the performance, of work for which the contractor must be licensed by the CCB, the CCB may hear the claim regarding the performance or the contract. ORS 701.139; ORS 701.140. The claimant must send notice to the contractor (by certified mail) 30 days before filing a complaint with the CCB. ORS 701.133(1).

To bring a claim before the CCB, the owner of a new residential home must file a claim no later than the earlier of one year after the date that the home was first occupied or two years after substantial completion. ORS 701.143(1). For existing structures, the owner must file the claim no later than one year after the date of substantial completion. ORS 701.143(2). A claim regarding failure to begin the work must be brought within one year after the date the parties entered into the contract. ORS 701.143(3). A claim that a contractor failed to substantially complete work must be brought within one year after the date the contractor ceased to work. ORS 701.143(4).

See chapter 18 for further information on CCB claims and requirements.

§ 9.4-2 Prefiling Requirements for Residential Construction Disputes in Litigation or Arbitration

§ 9.4-2(a) Contractual Requirements

A residential construction contract may require the purchaser to take certain measures or to submit the claim to mediation or arbitration before commencing a formal suit. The contract may also require notices beyond what is required by law or may require the purchaser to offer the seller or contractor a specified period of time to cure the defect before filing suit. Courts generally tend to enforce these provisions unless the provisions are particularly onerous or unconscionable in light of their generally adhesive nature and the buyer’s level of sophistication. See Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or App 553, 567–69, 152 P3d 940 (2007) (an arbitration clause regarding a home mortgage loan was unconscionable because the contract was in a language that plaintiffs did not understand, and because the defendant misled the plaintiffs into thinking that the contract terms expressed in that language were favorable to the plaintiffs).

§ 9.4-2(b) Statutorily Required Notices

For residential structures, an owner (i.e., the claimant) must comply with notice-of-defect requirements before the owner commences a construction defect claim against a contractor, subcontractor, or supplier. ORS 701.565(1). The notice-of-defect requirements do not apply to personal-injury or death claims, CCB claims, claims against licensed design professionals, small claims, or counterclaims. ORS 701.600. An owner is a person who possesses an interest in a residence or in land that is a residential site or who has entered into a contract for the purchase of an interest in the residence or land; it can include a homeowners’ association. ORS 701.560(3). A contractor is broadly defined as “a person that performed services for the construction, alteration or repair of a residence.” ORS 701.560(1). A subcontractor is defined as “any person that performed services for the construction, alteration or repair of a residence at the request or direction of a contractor.” ORS 701.560(7). A supplier is “any person that furnished or manufactured the systems, components or materials incorporated into a residence as part of the construction, alteration or repair of the residence.” ORS 701.560(8).

If the owner does not give proper notice to the contractor, subcontractor, or supplier, the court or the arbitrator must dismiss the lawsuit or arbitration without prejudice. The owner must provide proper notice before refiling. ORS 701.595; see Strizver v. Wilsey, 210 Or App 33, 36, 150 P3d 10 (2006), rev den, 342 Or 474 (2007). Notices of defect, inspection requests, and written reports can be used as evidence in court or arbitration. ORS 701.580(5). However, a rejected settlement offer can be used only to prove timeliness or the owner’s right to compel arbitration or bring a lawsuit. ORS 701.580(6).

§ 9.4-2(b)(1) The Notice of Defect

The owner’s notice of defect must be sent by registered mail, return receipt requested. ORS 701.565(2). The notice must include specific details: (1) the owner’s (or owner’s legal representative’s) name and mailing address, (2) a statement that the owner may file a lawsuit or compel arbitration, (3) the address and location of the affected residence, (4) a description of each defect, (5) a description of the remediation that the owner believes is necessary to repair the home and any incidental damage not curable by remediation, and (6) any report or other documents evidencing the defects and any incidental damages. ORS 701.565(3). The notice of defect should put the contractor, subcontractor, or supplier on general notice regarding the defects and required remediation. For example, a notice describing a leak into the foundation speculated to originate in the shower would not be deemed insufficient if, on further inspection, it turned out that the leak originated in the sink. Relating to Residential Construction Claims: Public Hearing Before the House Comm. on Business, Labor, and Consumer Affairs, 2003 Reg Sess (Feb 12, 2003) (statement of Ron Manza, Prof. Ins. Agents) (citation not verified by publisher).

§ 9.4-2(b)(2) The Secondary Notice of Defect

Within 14 days of receiving a notice of defect from the owner, the contractor, subcontractor, or supplier must send a written notice to any other known contractor, subcontractor, or material supplier who may be responsible for the defects described in the notice. This secondary notice of defect must be sent by registered or certified mail, return receipt requested, and must include a statement describing how the person or entity may be responsible for some or all of the defects alleged by the owner. ORS 701.570(1).

§ 9.4-2(b)(3) Available Responses

The entity receiving a primary or secondary notice of defect must respond in writing to the owner within 90 days of receiving the notice. The response must be sent by registered or certified mail, return receipt requested, and must contain (1) one or more of the following for each defect described in the notice: (a) an acknowledgement of the existence, nature, and extent of the defect without regard to responsibility; (b) a description of the existence of a defect observed that is different in nature or extent from the defect described in the notice; or (c) a denial that the defect exists; (2) the documents or reports generated during inspection or examination; and (3) an offer to perform remediation within a specified time frame, an offer to pay monetary compensation, or a denial of responsibility. ORS 701.570(5). Remediation performed as part of an accepted offer “does not constitute a new performance” and, for purposes of the statute of repose, “relates back to the earliest date of substantial completion or abandonment” of the project. ORS 701.585(4). If an owner chooses to accept a contractor’s written offer to perform remediation or pay damages, the owner must do so in writing within 30 days of receiving the offer. The owner’s failure to accept an offer is deemed a rejection of the offer. ORS 701.580(1).

§ 9.4-2(b)(4) Visual Examinations and Inspections

A contractor, subcontractor, or supplier who receives the owner’s notice of defect has 14 days to request, in writing, a visual examination of the affected residence. The request must state the estimated time required for the examination. ORS 701.570(2). The owner must make the residence available during normal business hours or as otherwise agreed within 20 days of receiving the written request. ORS 701.575(1).

After a visual examination, the contractor, subcontractor, or supplier may want to inspect the residence. If so, the requesting entity must notify the owner in writing within 14 days of the visual examination. The request for inspection must state the nature and scope of the inspection, the testing to be performed, and the estimated time required. ORS 701.575(3). The contractor, subcontractor, or supplier must coordinate inspection with parties whom the primary defendant intends to hold secondarily liable and must provide them with copies of the request sent to the claimant. ORS 701.570(4). Unless the owner and the contractor, subcontractor, or supplier agree otherwise, the entity conducting the inspection must repair any damage caused by the inspection. ORS 701.575(3). Entities that received a primary or secondary notice of defect and that participated in inspections must provide a written report or other document evidencing the result of the inspection and whether or not defects were found. ORS 701.575(4); ORS 701.570(5)(b). A written report or other document evidencing the inspection can be used as evidence in a subsequent court or arbitral proceeding. ORS 701.580(5).

§ 9.4-2(b)(5) The Tolling Period

If an owner issues a proper notice of defect within the appropriate statute of limitations for the owner to commence a court action, then the statute is tolled to provide time for the notice-of-defect process to proceed before the owner commences suit. ORS 701.585(1). The length of the extension of time depends on the circumstances, such as whether the contractor, subcontractor, or supplier makes an offer to remediate or compensate the owner for the alleged defects. ORS 701.585(1); see Strizver v. Wilsey, 210 Or App 33, 39–40, 150 P3d 10 (2006), rev den, 342 Or 474 (2007). Generally, if an owner sends a notice before the statute of limitations has run on the claim, the statute is extended for 120 days after the contractor, subcontractor, or supplier denies responsibility, 120 days after the owner rejects a settlement offer, or 30 days after the contractor fails to perform agreed repairs or pay agreed damages. ORS 701.585(1). Delivery of a secondary notice of defect “does not act to toll the expiration of any right of the owner to commence a court action against the recipient of the secondary notice.” ORS 701.585(3). The tolling provision in ORS 701.585 does not directly address the applicable tolling period should the contractor, subcontractor, or supplier fail to respond to the notice of defect.

There is no tolling period for a secondary notice of defect.

Practice Tip: If timing is a problem (statute of limitations or repose), a contractor pursuing third-party claims against subcontractors may need to file suit after receiving a notice of defect, because a secondary notice of defect will not provide any tolling.

§ 9.4-3 Types of Claims

Different types of claims can arise from the design, construction, sale, and subsequent sale of residential housing. The different types of contractual, statutory, and common-law claims that may be available are briefly surveyed in § 9.4-3(a) to § 9.4-3(k)(2).

§ 9.4-3(a) Breach of Contract

Claims for breaches of contract typically arise between the contractor, subcontractors, seller, and buyer of a residential property. Oregon law generally applies regardless of a choice-of-law clause in the contract because ORS 701.640(1)(a) prohibits parties from choosing to apply out-of-state laws to construction contracts. If the work is performed primarily in Oregon, then Oregon law applies unless one of the parties is a financial institution or some Oregon statute “expressly designates the law applicable to the contract.” ORS 15.320(2); ORS 15.305.

The statute of limitations for breach-of-contract claims is six years for claims regarding construction. ORS 12.080(1).

The six-year contract statute of limitations under ORS 12.080(1) probably incorporates a discovery rule. See Rice v. Rabb, 354 Or 721, 728, 320 P3d 554 (2014) (“[F]ollowing the reasoning of [Berry v. Branner, 245 Or 307, 421 P2d 996 (1966)], . . . a discovery rule applies to [a replevin action under] ORS 12.080(4) because that statute falls under the purview of ORS 12.010.”). Claims for breach of contract under ORS 12.080(1) would similarly fall under the purview of ORS 12.010.

The repose period for a breach-of-contract claim is 10 years from substantial completion or abandonment of the project. ORS 12.135(1)(b); see § 9.4-3(d) (negligent construction).

A breach-of-contract claim may be brought for breach of express provisions or implied provisions of the contract. For example, a breach-of-contract claim is available when a contractor fails to perform in accordance with the express terms of the contract, such as a failure to perform the construction in accordance with the plans and specifications. Beyond the express terms of a contract, a contractor has an implied contractual obligation to perform all the work required under the contract in a workmanlike manner. See § 9.3-2(a) (reasonable workmanlike performance). A contract may also contain an express provision calling for work to be performed in a workmanlike manner. Such express provisions can, themselves, support an independent breach-of-contract claim. In Metro. Prop. & Cas. v. Harper, 168 Or App 358, 367, 7 P3d 541 (2000), the contract specified that “construction will be completed in a timely and workmanlike manner.” The court concluded that “contracting parties are entitled to enforce commitments to perform contractual obligations in accordance with a general standard of care.” Metro. Prop. & Cas., 168 Or App at 369.

In addition to the implied contractual requirement that work be performed in a workmanlike manner, there is also an implied duty of good faith and fair dealing within every contract. A claim for breach of the duty of good faith and fair dealing can be made when a party engages in any act that will “have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Perkins v. Standard Oil Co., 235 Or 7, 16, 383 P2d 107, modification den, 235 Or 23, 383 P2d 1002 (1963) (quoting 3 Corbin on Contracts 278).

The implied duty of good faith and fair dealing has some limits. First, the duty applies only when a contract provision involves an exercise of discretion (e.g., reasonably consenting to the transfer of a lease). Pac. First Bank v. New Morgan Park Corp., 319 Or 342, 351, 876 P2d 761 (1994). Second, what constitutes good faith is determined according to the objectively reasonable expectations of both parties. Tolbert v. First Nat’l Bank of Oregon, 312 Or 485, 494, 823 P2d 965 (1991); Best v. U.S. Nat’l Bank of Oregon, 303 Or 557, 562–63, 739 P2d 554 (1987).

§ 9.4-3(b) Breach of Express Warranties

Express warranties are often made in writing in the contract, but oral express warranties are also valid. To clarify between the seller and the buyer of new residential property the express warranties that apply to the property, a contractor who built the residence has the option of recording in the county deed records a written warranty agreement setting forth any express warranties that may benefit or burden subsequent owners of the structure. ORS 701.605. The warranties cease to affect title to the property 10 years after the date the instrument is recorded. ORS 701.605(2)(b). The statute of limitations for a claim for breach of an express warranty is six years. See ORS 12.080(3); Beveridge v. King, 292 Or 771, 778–79, 643 P2d 332 (1982).

Not surprisingly, oral express warranties are a common subject of litigation. In Taylor v. Ramsay-Gerding Constr. Co., 345 Or 403, 406–07, 196 P3d 532 (2008), a stucco manufacturer’s representative made representations to the owners, the general contractor, and the stucco installer about the product, and provided a written five-year warranty. The Oregon Supreme Court upheld a jury finding of the representative’s apparent authority to issue such a warranty, although the representative did not, in fact, have authority to issue warranties. The court held that when a manufacturer’s territory manager has authority to process warranties, communicate warranty information to customers, visit jobsites, and resolve problems, the manager’s apparent authority may bind the manufacturer to a warranty. Taylor, 345 Or at 411–12. On remand, the Oregon Court of Appeals held that evidence of alternate causation, for example, whether damages were the result of the manufacturer’s breach or some other reason such as the general contractor’s negligence, was admissible—regardless of whether comparative fault is a defense to a breach-of-warranty claim. Taylor v. Ramsay-Gerding Constr. Co., 233 Or App 272, 289–91, 226 P3d 45, adh’d to as modified on recons, 235 Or App 524, 234 P3d 129 (2010).

Practice Tip: This is an important issue. The court allowed a comparative fault analysis in the breach-of-contract/warranty action. Taylor, 233 Or App at 290–91.

Note: In some cases, the law requires a seller or a builder to make certain express warranties to a purchaser. For example, in the sale of new condominium homes, the seller must warrant against defects in the plumbing, electrical, mechanical, structural, and all other components of new units and common elements. ORS 100.185(1). A seller that complies with the statute’s express warranty requirement may not be subject to implied warranties. ORS 100.185(1)(e). Similarly, contracts for the construction of residential structures and zero-lot-line dwellings must offer express warranties against defects in materials and workmanship to the owner or original purchaser. ORS 701.320. However, neither statute defines the term, conditions, or limitations on the required warranty, except that if a contractor makes the written offer of a warranty under ORS 701.320 before the contractor and the owner both sign a written construction contract and the owner refuses the offered warranty, the contractor may withdraw the offer to construct the structure or dwelling. ORS 701.320. See the discussion in § 9.6-2.

§ 9.4-3(c) Breach of Implied Warranties

Speculation homes generally carry an implied warranty of fitness for purpose and habitability. In Yepsen v. Burgess, 269 Or 635, 640–41, 525 P2d 1019 (1974), the court recognized an implied warranty of fitness in the sale of a new house when the seller was a builder–vendor. See the discussion of the Yepsen case in § 9.3-2(b). In Yepsen, the buyer argued, and the court agreed, that because the septic tank and drain field were improperly constructed, the house was not habitable. Yepsen, 269 Or at 641–42. (Septic and plumbing problems are often grounds for habitability claims.) The standard for such claims, however, is not yet fixed in Oregon. See Cabal v. Donnelly, 302 Or 115, 121–22, 727 P2d 111 (1986) (standing water from a defective septic system, as well as leaks and cracks throughout the home, breached the warranty of habitability).

As noted in § 9.4-3(b), sellers of new condominium homes must provide certain express warranties in lieu of any implied warranties. The seller may be subject to implied warranties, however, to the extent that the seller does not comply with the statute’s express warranty requirement. ORS 100.185(1)(e). See the discussion in § 9.6-2.

Custom-built homes are not subject to implied warranties of fitness and habitability. In Chandler v. Bunick, 279 Or 353, 355, 569 P2d 1037 (1977), the plaintiff hired the defendant to build a custom house on the plaintiff’s property. The defendant improperly installed a septic tank, causing substantial damage. The plaintiff sued for breach of the implied warranty of habitability. The court held that there was no reason to expand warranty protections, because the plaintiff had protections based on the construction contract and in negligence, and had the opportunity to have the house inspected at various stages during the construction. Chandler, 279 Or at 357–58.

Similarly, there is no implied warranty made in connection with the sale of a developed building lot regardless of whether the land is, in fact, unsuitable for the purchaser’s intended purpose. Cook v. Salishan Properties, Inc., 279 Or 333, 337–38, 569 P2d 1033 (1977) (residence built on sand spit was damaged by erosion). Instead, real estate developers are held to a negligence standard based on the “accepted doctrine that one who holds himself out as having the skill and competence which prevails in a given profession or trade has a duty to exercise that skill and competence in carrying on [the developer’s] business activities.” Beri, Inc. v. Salishan Properties, Inc., 282 Or 569, 577, 580 P2d 173 (1978).

A subsequent purchaser of a residence likely cannot bring a claim for breach of implied warranties because the subsequent purchaser does not have privity of contract with the original builder–seller. See Simonsen v. Ford Motor Co., 196 Or App 460, 479, 102 P3d 710 (2004), rev den, 338 Or 681 (2005) (subsequent purchaser of an automobile lacked privity of contract to bring a breach-of-warranty claim against the vehicle manufacturer); Colvin v. FMC Corp., 43 Or App 709, 716, 604 P2d 157 (1979) (denying a personal injury claim against a manufacturer of insecticide because privity of contract existed solely between the manufacturer and the claimant’s employer).

§ 9.4-3(d) Negligent Construction

In Oregon, owners of residential structures can bring claims for negligent construction, regardless of privity. Abraham v. T. Henry Constr., Inc., 350 Or 29, 41–42, 249 P3d 534 (2011) (original purchasers in privity with the builder asserted claim for negligence); Harris v. Suniga, 344 Or 301, 305, 180 P3d 12 (2008) (subsequent purchaser of an apartment building asserted a construction defect claim against the original builder); Beri, Inc. v. Salishan Properties, Inc., 282 Or 569, 581–82, 580 P2d 173 (1978) (assignees are members of a foreseeable class that would be harmed and people to whom the defendant developers owed a duty to investigate potential erosion problems); Bunnell v. Dalton Constr., Inc., 210 Or App 138, 143–44, 149 P3d 1240 (2006), rev den, 344 Or 558 (2008) (subsequent purchaser of a home may bring a negligence action against the builder despite knowledge of defects at the time of sale); Newman v. Tualatin Dev. Co., Inc., 287 Or 47, 52–53, 597 P2d 800 (1979) (in a class-action suit, nonprivity owners may bring negligence claims against builders).

The statute of limitations for negligent construction claims is generally two years from discovery. Goodwin v. Kingsmen Plastering, Inc., 359 Or 694, 714, 375 P3d 463 (2016).

The statute of repose against a party in privity (e.g., original owner versus general contractor it contracted with or general contractor versus subcontractor) for negligent construction of residential structures is 10 years from substantial completion or abandonment of the project. ORS 12.135(1)(b). However, when there is no privity (e.g., subsequent owner versus general contractor or owner versus subcontractor), the statute of repose is 10 years from the date of the act or omission complained of. ORS 12.115(1); Shell v. Schollander Companies, Inc., 358 Or 552, 558–59, 369 P3d 1101 (2016). This distinction can be important because it may be difficult to prove the date of substantial completion, and the date of substantial completion is a single project-wide date, the effect of which is that earlier performing subcontractors, such as concrete foundation subcontractors, are potentially exposed to claims for more than 10 years after the end of their work. The date of substantial completion is either the date when a contractee (i.e., the original owner) receives the construction and consents or assents to it in writing as sufficiently complete for its intended use or occupancy, or the date on which the construction was fully complete. PIH Beaverton, LLC v. Super One, Inc., 355 Or 267, 277, 284, 323 P3d 961 (2014). Further, neither the filing of a notice of completion under the lien laws nor the building department’s certificate of occupancy or notice of completion is definitive proof that the construction is substantially complete. Riverview Condo. Ass’n v. Cypress Ventures, Inc., 266 Or App 574, 591–92, 339 P3d 447 (2014). On the other hand, establishing the date of the act or omission complained of under ORS 12.115(1), e.g., when the concrete foundation subcontractor finished its work on a project, should be less difficult to prove.

Practice Tip: Given the statute of limitations differences between contract and tort, distinctions between these claims must be carefully considered.

§ 9.4-3(d)(1) The Standard of Care

The claimant has the burden of establishing the standard of care. The general standard of care for claims against contractors is to exercise reasonable care to avoid foreseeable harm to an owner’s property by performing work “in a workmanship like manner and in compliance with the building codes and other applicable laws.” Abraham v. T. Henry Constr., Inc., 350 Or 29, 38, 249 P3d 534 (2011). See § 9.3-2(a).

Claimants may rely on contract terms to establish responsibilities, duties, and the standard of care. Waterway Terminals Co. v. P.S. Lord Mech. Contractors, 242 Or 1, 49–53, 406 P2d 556 (1965) (jury instructed to consider contract terms to determine responsibilities, duties, and standard of care). This can cut both ways, as the Abraham court affirmed that parties “may limit tort remedies by defining their obligations in such a way that the common law standard of care has been supplanted.” Abraham, 350 Or at 40.

The same standard of care that applies to professional contractors also applies to owner–builders. Owner–builders have liability exposure in negligence for construction defects. Under Oregon negligence law, the question of liability simply turns on whether the defendant’s conduct “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff,” regardless of the defendant’s profession. Cowan v. Nordyke, 232 Or App 384, 387, 222 P3d 1093 (2009), rev den, 348 Or 114 (2010) (quoting Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987)).

Heightened standards of care and economic loss are discussed in § 9.4-3(d)(3).

§ 9.4-3(d)(2) Property Damage

Negligence claims require property damage, absent a special relationship or heightened duty of care. Property damage is “physical damage to real or other tangible property.” Harris v. Suniga, 344 Or 301, 312, 180 P3d 12 (2008). This definition of property damage is generally in compliance with commercial general liability (CGL) insurance policies. CGL policies commonly define property damage to include physical injury to tangible property, including all resulting loss of use of that property, as well as the loss of use of tangible property that is not physically injured.

In the residential construction dispute context, examples of property damage sufficient to sustain a negligence claim include:

· Water damage. Abraham v. T. Henry Constr., Inc., 350 Or 29, 37, 249 P3d 534 (2011); Harris, 344 Or at 311–12;

· Dry rot. Harris, 344 Or at 305;

· Deteriorated pipes. Newman v. Tualatin Dev. Co., Inc., 287 Or 47, 50, 597 P2d 800 (1979);

· Deterioration to the physical structure of a building. Bunnell v. Dalton Constr., Inc., 210 Or App 138, 142, 149 P3d 1240 (2006), rev den, 344 Or 558 (2008); and

· Oceanfront lots subject to, and being destroyed by, erosion. Beri, Inc. v. Salishan Properties, Inc., 282 Or 569, 582, 580 P2d 173 (1978).

In negligence actions, property damage is distinct from economic loss. Examples of economic loss include: (1) reduced stock price; (2) a monetary gift to a beneficiary; and (3) indebtedness incurred or return of money paid. Harris, 344 Or at 310. To recover in negligence solely for economic loss, a special relationship or heightened duty of care is required (discussed in § 9.4-3(d)(3)).

The line between property damage and economic loss is not always clear in construction disputes. The Oregon Supreme Court in Abraham attempted to delineate two extremes by comparing losses arising in contract versus losses arising in tort. The court in Abraham used an example of a contractor installing a PVC pipe in a home instead of installing a copper pipe as required by the construction contract. The failure to install a copper pipe would be a breach of contract only (assuming that both pipes comply with the building code and the use of either would be consistent with the standard of care applicable to contractors). On the other hand, if the contractor installed the PVC pipe in a defective manner that caused leakage and property damage, this loss would be recoverable in both contract and tort. Abraham, 350 Or at 35. Damages and losses in residential construction disputes can run the gamut between and beyond these examples, and categorization of damages and losses are constantly evaluated and contested.

Another issue in construction disputes is recovery for future property damage in negligence. Future property damage may be an aspect of damages in an otherwise actionable claim. However, future property damage standing alone is not recoverable. Cf. Lowe v. Philip Morris USA, Inc., 344 Or 403, 410, 183 P3d 181 (2008) (disallowing a cigarette smoker’s claim that her accumulated exposure to smoke had increased her risk of lung cancer).

§ 9.4-3(d)(3) The Economic-Loss Doctrine

To recover in negligence for solely economic loss, a special relationship or heightened duty of care is required. See § 2.2-2 for discussion of the economic-loss doctrine. In analyzing relationships between contractors and owners, the Oregon Court of Appeals has recently found two instances in which residential builders and owners were not in special relationships based on the evidence, or lack thereof, presented. Abraham v. T. Henry Constr., Inc., 230 Or App 564, 570, 217 P3d 212 (2009), aff’d, 350 Or 29, 249 P3d 534 (2011); Jones v. Emerald Pac. Homes, Inc., 188 Or App 471, 478, 71 P3d 574, rev den, 336 Or 125 (2003). However, the Jones court explained the fact-specific inquiry and noted that it was “conceivable that the facts in some situations might demonstrate that a building contractor and its client are in a contractual relationship” from which a special relationship might arise. Jones, 188 Or App at 478; cf. Ashley v. Fletcher, 275 Or 405, 406, 550 P2d 1385 (1976) (allowing a negligence claim for economic loss against an architect); Bales for Food, Inc. v. Poole, 246 Or 253, 256, 424 P2d 892 (1967) (allowing a negligence claim for economic loss against an engineer).

§ 9.4-3(d)(4) Negligence Per Se

Negligence per se is a method of proving negligence that uses a statute or ordinance to establish a rebuttable standard of care. It is not a cause of action distinct from traditional negligence. Abraham v. T. Henry Constr., Inc., 230 Or App 564, 573, 217 P3d 212 (2009), aff’d, 350 Or 29, 249 P3d 534 (2011). For a complete discussion of negligence per se, see 2 Torts ch 33 (OSB Legal Pubs 2012).

The elements of negligence per se are as follows:

(1) The defendant violated a statute or rule;

(2) The plaintiff was injured because of the defendant’s violation;

(3) The plaintiff is a member of the class or persons meant to be protected by the statute or rule;

(4) The plaintiff’s injury is of the type the statute or rule sought to prevent.

Abraham, 230 Or App at 573.

Generally in the context of residential construction, claimants rely on the building code to establish a statutory standard of care. For example, in Eduardo v. Clatsop Cmty. Res. Dev. Corp., 168 Or App 383, 391, 4 P3d 83 (2000), a tenant brought a negligence claim against the landlord for the tenant’s personal injuries, using the landlord’s violations of the building code to establish unreasonable conduct. The court held that failure to comply with building codes can constitute negligence per se.

§ 9.4-3(e) Nuisance Claims

Trial courts differ on whether nuisance is a viable claim in the context of construction defect claims. There is no bright-line rule in Oregon by which to determine whether defects such as water intrusion can support a nuisance claim. However, the two types of nuisance claims—public nuisances and private nuisances—may be viable should the appropriate circumstances present themselves.

Public nuisances involve an unreasonable interference with a right common to the general public. Restatement (Second) of Torts § 821B(1) (1979). Only the following people may sue to abate a public nuisance: people who have suffered harm different from the harm suffered by the general public; people who have authority as a public officer or public agency to represent the government in the matter; and people who have standing to sue as a representative of the general public, such as a member of a class in a class-action lawsuit. Restatement § 821C.

Private nuisances involve “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement § 821D. The following people may sue to recover for a private nuisance: possessors of the land affected, owners of easements and profits in the land affected, owners of nonpossessory estates in the affected land that are detrimentally affected by interferences with the loss of use and enjoyment, and anyone else that has property rights and privileges with respect to use and enjoyment of the affected land. Restatement § 821E.

A defendant is liable for a private nuisance only if the defendant’s conduct causes an invasion of another’s use and enjoyment of the land, and the invasion is either intentional and unreasonable, or unintentional and relates to an abnormally dangerous condition or activity or is otherwise actionable. Restatement § 822.

The court has gone both ways in terms of whether nuisance can support a claim for emotional distress damages. For instance, in Meyer v. 4-D Insulation Co., Inc., 60 Or App 70, 652 P2d 852 (1982), the plaintiff’s house had been damaged during a fire that was caused by the defendant’s failure to properly install insulation. In refusing to award emotional-distress damages, the court noted:

It is difficult to imagine a circumstance in which damage to any property does not directly, naturally and predictably result in some emotional upset . . . Regardless of the language used to describe when [emotional-distress] damages are recoverable, the Oregon cases allowing such damages all involve an interference with the person beyond the inconvenience and distress always resulting from interference with property.

Meyer, 60 Or App at 74–75.

On the other hand, the court awarded emotional-distress damages in Edwards v. Talent Irrigation Dist., 280 Or 307, 309–10, 570 P2d 1169 (1977). The plaintiffs had alleged damages as a result of water entering their property from the defendant’s irrigation ditch. The plaintiffs’ claims were characterized as negligence but alleged that the water had interfered with the use and enjoyment of their land. The court held that under those circumstances, emotional-distress damages were recoverable.

§ 9.4-3(f) Unlawful Trade Practices Act (UTPA)

Oregon’s Unlawful Trade Practices Act (UTPA) is codified at ORS 646.605 to 646.652. A typical claim under the UTPA in the context of the construction and sale of new housing often involves allegations of false representations that were made to a consumer about the quality of a new house or building. Typical defenses to UTPA claims include the following: (1) no representations were made, (2) representations were subjective “puffing,” (3) representations were about future performance, or (4) the transaction was a commercial transaction. Additionally, defendants may rely on the relatively short statute of limitations—just one year from the date of discovery. ORS 646.638(6).

A plaintiff is said to have discovered a potential claim when the plaintiff should have sufficient knowledge to excite attention and become suspicious, and when it appears that a reasonably diligent inquiry would disclose the claim. McCulloch v. Price Waterhouse LLP, 157 Or App 237, 248, 971 P2d 414 (1998), rev den, 328 Or 365 (1999).

In keeping with the UTPA’s goal of discouraging deceptive trade practices and providing a viable remedy to those harmed by such practices, Raudebaugh v. Action Pest Control, Inc., 59 Or App 166, 171, 650 P2d 1006 (1982), the UTPA provides that prevailing parties can collect attorney fees. ORS 646.638(3). The court may award attorney fees to a prevailing defendant only if the court finds there was no objectively reasonable basis for the plaintiff’s bringing the action or asserting the ground for appeal. ORS 646.648(3).

In construction defect cases, plaintiffs most often assert that the contractor violated the UTPA by misrepresenting the quality or characteristics of the construction. ORS 646.608(1)(e), (g). To recover under the UTPA, a plaintiff must prove that the defendant engaged in a statutorily unlawful trade practice listed in ORS 646.607 to 646.608(1), the practice caused injury to the plaintiff, and the plaintiff experienced damage as the result of the injury. ORS 646.638(1); Feitler v. Animation Celection, Inc., 170 Or App 702, 708, 13 P3d 1044 (2000). Under the UTPA, the plaintiff needs to prove only that the defendant’s misrepresentations were made negligently. See ORS 646.638(1), 646.605(10) (“A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation.”); Raudebaugh, 59 Or App at 171. The misrepresentations can be express or implied through the failure to disclose a material fact. ORS 646.608(2). Notably, a plaintiff is not required to prove privity with a defendant for a UTPA claim, or that the representations were made directly to the plaintiff. Raudebaugh, 59 Or App at 172.

§ 9.4-3(g) Fraud

A fraud claim is separate from and may be alleged with a claim under Oregon’s UTPA (discussed in § 9.4-3(f)). The following elements are necessary to establish a fraud claim in Oregon: (1) a representation, (2) its falsity, (3) its materiality, (4) the defendant speaker’s knowledge of the statement’s falsity or ignorance of its truth, (5) the defendant speaker’s intent that the plaintiff hearer would act on the statement in the manner reasonably contemplated, (6) the plaintiff hearer’s ignorance of the statement’s falsity, (7) the plaintiff hearer’s reliance on the truth of the representation, (8) the plaintiff hearer’s right to rely on the representation, and (9) the plaintiff hearer’s consequent and proximate injury. Rice v. McAlister, 268 Or 125, 128, 519 P2d 1263 (1974).

A statement of opinion does not constitute actionable fraud. In the oft-cited Oregon case Holland v. Lentz, 239 Or 332, 336, 397 P2d 787 (1964), the court held that a real estate broker’s statement that a home was of good quality and was constructed in a good and workmanlike manner was not actionable as fraud.

The statute of limitations for fraud claims is two years from the date that the claimant knew or should have known of the alleged fraud. ORS 12.110(1); Bell v. Benjamin, 232 Or App 481, 485–86, 222 P3d 741 (2009), rev den, 348 Or 461 (2010).

§ 9.4-3(h) Products Liability

The elements of a products-liability action are codified in ORS 30.900 to 30.920. Residential structures, as a whole, are not considered products as defined under the products-liability laws. Ass’n of Unit Owners of Bridgeview Condominiums v. Dunning, 187 Or App 595, 617, 69 P3d 788 (2003); see Harris v. Suniga, 209 Or App 410, 421–22, 149 P3d 224 (2006), aff’d, 344 Or 301, 180 P3d 12 (2008).

Comment: Therefore, products-liability claims in the context of residential construction are generally limited to specific products or materials, such as the windows or siding, used during the course of construction. For a complete discussion of products-liability actions, see 1 Torts ch 20 (OSB Legal Pubs 2012).

A plaintiff must commence a products-liability action within two years after the plaintiff discovers, or should have discovered, the damage and the causal connection between the damage and the product. ORS 30.905(1). This statute of limitations is subject to a variable statute of ultimate repose, depending on the laws of the state in which the product is manufactured. For products manufactured in Oregon, the repose period is 10 years from the date the product is first purchased for use or consumption. ORS 30.905(2).

§ 9.4-3(i) Magnuson-Moss Warranty Act

The Magnuson-Moss Warranty Act (MMWA) regulates written warranties on consumer goods distributed in interstate commerce. It establishes minimum disclosure requirements for warrantors as well as minimum requirements for the form, content, and coverage of warranties, and mechanisms for private and public enforcement. See, e.g., 15 USC § 2302 (requirements for contents of warranties). If a consumer wins an action involving a violation of the MMWA, the court may award attorney fees. 15 USC § 2310(d)(2). Whether the MMWA applies depends on the nature of the purchase transaction, that is, whether the product is a consumer product or an improvement on real property. If the product is a consumer product, the MMWA applies. See 15 USC § 2302. This distinction appears to allow claims under the MMWA for newly installed systems or components on existing construction, for example, reroofing or re-siding. See 15 USC § 2301 for definitions under the MMWA.

For a complete discussion of the MMWA, see 2 Consumer Law in Oregon §§ 16.6 to 16.6-10(c) (OSB Legal Pubs 2013).

§ 9.4-3(j) Third-Party Claims

Third-party claims for contribution or indemnity are common in the construction-defect context when an owner may be entitled to recover from a single party, who in turn may be entitled to recover from other responsible third parties. Third-party claims can present issues of statutes of limitations and repose for third-party claimants. For example, when a plaintiff discovers an actionable claim just before the statute of repose expires, the defendant may not have time to bring a third-party claim. See ORS 12.135. Further, the availability of a common-law indemnity claim may depend on the relationship of the parties to the claim and the procedural posture of a case.

§ 9.4-3(j)(1) Contribution

In a construction defect context, claims for contribution are most often brought among contractors, subcontractors, and design professionals, as third-party plaintiffs and defendants in a case brought by the plaintiff owner. The court’s ruling in Abraham v. T. Henry Constr. Inc., 230 Or App 564, 572–74, 217 P3d 212 (2009), aff’d, 350 Or 29, 249 P3d 534 (2011), allowing negligence claims for construction defects based on violation of the building code, suggests that the court would allow contribution claims among various construction and design professionals.

To recover on a contribution claim, a third-party plaintiff must establish that both it and the third-party defendant are liable to the plaintiff in tort for the same damages. ORS 31.800(1). In Jensen v. Alley, 128 Or App 673, 677, 877 P2d 108, rev den, 320 Or 272 (1994), the court set forth four elements of a contribution claim: (1) joint liability, (2) payment by the plaintiff of more than a proportional share, (3) a settlement extinguishing the defendant’s liability, and (4) a settlement not exceeding the injury.

In the case of injury or wrongful death, an action for contribution must be commenced within two years after the underlying judgment “has become final by lapse of time for appeal or after appellate review.” ORS 31.810(3). In all other cases, the contribution action must be commenced within two years of payment of the underlying debt. ORS 31.810(4).

§ 9.4-3(j)(2) Indemnity

There are two kinds of indemnity claims: contractual and common law. Contractual indemnity provisions are generally enforced if the provisions are not detrimental to the indemnitor to an extent that the parties could not reasonably have intended. State, ex rel. Dep’t of Forestry v. PacifiCorp, 236 Or App 326, 333, 237 P3d 861, adh’d to as modified on recons, 237 Or App 228, 239 P3d 503, rev den, 349 Or 370 (2010). Contractual indemnity clauses in construction agreements must also comply with the construction anti-indemnity statute, ORS 30.140. Under the statute, a downstream party (i.e., a subcontractor) is required to indemnify an upstream party (i.e., a general contractor) only to the extent of the subcontractor’s fault. See ORS 31.140(1)–(2); Sunset Presbyterian Church v. Andersen Constr. Co., 268 Or App 309, 318–22, 341 P3d 192 (2014), rev den, 357 Or 551 (2015).The general contractor has the burden of proving what, if any, portion of defense fees the subcontractor owes. Sunset Presbyterian Church Constr. Co., 268 Or App at 322. Further, in the event an indemnity clause offends ORS 30.140(1) by requiring a subcontractor to indemnify the general contractor for the general contractor’s own negligence, the indemnity clause remains enforceable, but only to the extent of the subcontractor’s own negligence. Montara Owners Ass’n v. La Noue Dev., LLC, 357 Or 333, 343–44, 353 P3d 563 (2015).

Common-law indemnity claims in tort cases are unavailable among codefendants when the comparative fault statutes (ORS 31.600–31.620) apply. Eclectic Inv., LLC v. Patterson, 357 Or 25, 38, 346 P3d 468, adh’d to as modified on recons, 357 Or 327, 354 P3d 678 (2015). This holding does not appear to prevent a third-party plaintiff from impleading a party as a third-party defendant under a theory of common-law indemnity. That third-party practice, however, may be more appropriately styled as a third-party claim in comparative fault for the plaintiff’s damages. As discussed in Marton v. Ater Constr. Co., LLC, 256 Or App 554, 565 n 8, 302 P3d 1198 (2013),

[i]n Lasley [v. Combined Transport, Inc., 351 Or 1, 21, 261 P3d 1215 (2011)], the Supreme Court explained that, despite the language of ORCP 22 C(1), which “indicates that a third-party claim is designed for the circumstance in which the third-party defendant is or may be liable to the third-party plaintiff,” the language of the comparative fault statute, ORS 31.600, demonstrates that “[t]he legislature anticipated that a defendant could file a third-party complaint against a tortfeasor who would not be liable to the defendant but who could, instead, be liable to the plaintiff.” 351 Or at 22, 261 P3d 1215 (emphasis added). That is not how [general contractor] Ater pleaded its negligence, contribution, or indemnity claims, each of which seeks damages based on [window manufacturers] Marvin’s and Medallion’s liability to Ater. Nor does Ater argue on appeal that, even if Marvin and Medallion are not liable to Ater, they are properly named as third-party defendants because they are at fault and liable in tort to plaintiffs. Accordingly, our analysis throughout this opinion [and holding that Marvin and Medallion are not liable to Ater in tort] is limited to claims that a third-party defendant is or may be liable to the third-party plaintiff.

Further, Lasley does not address whether common-law indemnity claims in a contract setting remain viable. The distinction between common-law indemnity claims in a tort versus a contract setting is made in Star Mountain Ranch v. Paramore, 98 Or App 606, 609–10, 780 P2d 758 (1989):

There is no reason for a distinction between indemnity in tort cases and in contract or implied contract cases with respect to evaluation of fault. The concepts of “primary” and “secondary” liability or “passive” and “active” fault have not been used expressly in a contract context in Oregon. Compare Fulton Ins. Co. v. White Motor Corp., [261 Or 206, 493 P2d 138 (1972)] (products liability) and Owings v. Rosé, 262 Or 247, 497 P2d 1183 (1972) (professional malpractice) with Ram Development Corp. v. Siuslaw Enterprises, 283 Or 13, 580 P2d 552 (1978) (breach of contract) and School Dist. No. 4 v. U.S. Gypsum, 65 Or App 570, 672 P2d 1201 (1983) (breach of warranty). However, there is also no reason why the concepts should not be applied in a contract setting.

The proper approach was stated in Kennedy et al v. Colt, 216 Or 647, 339 P2d 450 (1959), which held that, if the parties are in pari delicto, indemnity will not lie. However, if the parties’ fault is not equal, the court held, “whether or not indemnity will lie, depends, not so much as to [sic] who was primarily or secondarily liable, as to [sic] who was primarily and secondarily responsible for the wrongful act.” 216 Or at 653, 339 P2d 450.

A common-law indemnity claim in a contract setting is potentially useful, for example, to focus the jury’s inquiry on whether the general contractor or the subcontractor was primarily responsible for the construction defect (i.e., the wrongful act) and the resulting damages.

Note: A particular set of facts may involve multiple duties, and, in deciding a common-law indemnity claim, the court must determine that the alleged indemnitor and the claimant share the same duty. To illustrate, in Safeco Ins. Co. of Am. v. Russell, 170 Or App 636, 640, 13 P3d 519 (2000), rev den, 331 Or 674 (2001), Safeco brought a common-law indemnity claim against an uninsured motorist who had injured Safeco’s insured during an automobile accident. The court held that Safeco could not maintain a common-law indemnity claim because the duty that Safeco owed to its insured differed from the duty that the uninsured motorist owed to the insured.

Note: Contracts containing limitations of liability may negate a common-law indemnity claim. For example, in Fujitsu Microelectronics, Inc. v. Lam Research Corp., 174 Or App 513, 516–17, 27 P3d 493, rev den, 332 Or 558 (2001), Fujitsu entered into a contract with TDC, a general contractor, for the design and construction of a semiconductor plant. The contract included a waiver by which the parties waived claims against each other and all subcontractors for any damages covered by insurance. The defendant delivered a tool to one of TDC’s subcontractors, who negligently dropped the tool. Fujitsu sued the defendant, who asserted a third-party claim against TDC and the subcontractor. The court dismissed the third-party complaint, holding that because the waiver prevented Fujitsu from suing TDC and the subcontractor, TDC and the subcontractor were not jointly liable in tort, and the claim for common-law indemnity therefore failed as a matter of law. Fujitsu Microelectronics, Inc., 174 Or App at 520. The court stated that it could see no reason why the element “jointly liable in tort” is not dispositive for a common-law indemnity claim; however, the opinion did not discuss common-law indemnity in a contract setting. Fujitsu Microelectronics, Inc., 174 Or App at 517 n 2.

The court has recognized that the “active–passive” and “primary–secondary” distinctions are “amorphous” and “somewhat obtuse.” Maurmann v. Del Morrow Constr., Inc., 182 Or App 171, 188 n 4, 48 P3d 185 (2002) (quoting Scott v. Francis, 100 Or App 392, 399, 786 P2d 1269 (Warren, J., dissenting), modified on recons, 104 Or App 39, 798 P2d 1111 (1990), vacated, 311 Or 151, 806 P2d 129, adopted as modified, 107 Or App 766, 811 P2d 927 (1991), aff’d, 314 Or 329, 838 P2d 596 (1992)). In the Maurmann case, two landslides caused damage in two subdivisions. Del Morrow Construction brought a cross-claim as a third-party plaintiff against North Santiam Paving as a third-party defendant. Del Morrow sought to recover from North Santiam for defense and satisfaction costs to the first-party plaintiff (the homeowners). At trial, the jury found that Del Morrow’s damages were 80 percent due to North Santiam’s negligence and breach of contract and 20 percent due to Del Morrow’s negligence and breach of contract. North Santiam argued that because Del Morrow was found comparatively negligent, the jury could not require North Santiam to indemnify Del Morrow. Del Morrow argued that its fault was passive or secondary and that North Santiam’s fault was active or primary. The trial court agreed, and ordered North Santiam to indemnify Del Morrow, which North Santiam subsequently appealed. Maurmann, 182 Or App at 174–76. On appeal, the court noted that when both parties’ negligence is essentially the same, the active–passive or primary–secondary distinction cannot be drawn. In this case, however, North Santiam’s negligence was materially different from that of Del Morrow. Maurmann, 182 Or App at 182–83. Thus, the jury’s allocation of fault did not preclude the trial court from awarding indemnification to Del Morrow, and the award was affirmed. Maurmann, 182 Or App at 185.

Note: The court in Maurmann did not have occasion to consider the applicability of ORS 30.140. See the discussion of that statute at the beginning of this section.

Common-law indemnity claims are based on implied contractual principles and are thus subject to the statute of limitations for contract claims, giving third-party plaintiffs six years to commence an action under ORS 12.080. Owings, 262 Or at 261–62. Contractual indemnity claims are also subject to the six-year statute of limitations under ORS 12.080 unless the contract provides otherwise. Owings, 262 Or at 261.

The statute of limitations for a common-law indemnity claim begins to run on the date of the third-party plaintiff’s discharge of the underlying obligation to the plaintiff. Safeco Ins. Co. of Am. v. Russell, 170 Or App 636, 639, 13 P3d 519 (2000), rev den, 331 Or 674 (2001). The statute of repose for indemnity claims is ten years from substantial completion or abandonment of the project. ORS 12.135(1)(b); PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 504, 294 P3d 536 (2013), aff’d, 355 Or 267, 323 P3d 961 (2014). Under this holding, a general contractor which gets sued shortly before the running of the statute of repose will likely not have viable indemnity claims against the subcontractors implicated in the plaintiff’s complaint unless the third-party complaint is filed against those subcontractors before the running of the statute of repose.

For a comprehensive discussion of the status of common-law indemnity in Oregon, see Annie & the Octopus: Common-Law Indemnity (OSB Legal Pubs 2018).

§ 9.4-3(k) Special Considerations: Design Professionals and Realtors

§ 9.4-3(k)(1) Claims against a Design Professional

If there is a design flaw in a structure or landscaping, an owner may have a claim against a construction design professional. Design professionals are not limited to architects and landscape architects; the category also includes professional engineers and land surveyors. ORS 31.300(1). Generally, claims against a design professional involve a breach of the standard of care.

Design professionals are held to the standard of care characteristic of those ordinarily skilled in the business. The seminal case, White v. Pallay, 119 Or 97, 247 P 316 (1926), held that in preparing plans and specifications, the architect must possess and exercise the care and skill of an ordinarily skilled architect. For a complete discussion of the standard of care for design professionals, see § 3.3-1 to § 3.4-2.

In conjunction with a suit against a design professional, the claimant’s attorney must certify along with a complaint, third-party complaint, or cross-claim that

the attorney has consulted a design professional with similar credentials who is qualified, available and willing to testify to admissible facts and opinions sufficient to create a question of fact as to the liability of the [defendant] design professional. The certification must contain a statement that a design professional with similar credentials who is qualified to testify as to the standard of professional skill and care applicable to the alleged facts, is available and willing to testify that:

(a) The alleged conduct of the [defendant] design professional failed to meet the standard of professional skill and care ordinarily provided by other design professionals with similar credentials, experience and expertise and practicing under the same or similar circumstances; and

(b) The alleged conduct was a cause of the claimed damages, losses or other harm.

ORS 31.300(2). If the statute of limitations is about to run, the claimant’s attorney may alternatively submit an affidavit indicating that a good-faith effort was made to consult with an expert and that the attorney will submit a qualifying certification within 30 days of filing. ORS 31.300(3).

An action against a person who is qualified and licensed to practice architecture, landscape architecture, or engineering must be brought within two years of discovery (regardless of whether based in contract or tort), and the 10-year statute of repose applies. ORS 12.135(3).

§ 9.4-3(k)(2) Claims against a Real Estate Licensee

A real estate licensee is “an individual who holds an active license or an active limited license as a real estate broker, principal real estate broker or licensed real estate property manager.” ORS 696.010(21). In a claim against a real estate licensee, the claimant’s attorney must certify along with a complaint, third-party complaint, or cross-claim that

the attorney has consulted a real estate licensee who is qualified, available and willing to testify to admissible facts and opinions sufficient to create a question of fact as to the liability of the [defendant] real estate licensee. . . . The certification must contain a statement that a real estate licensee who is qualified to testify as to the standard of care applicable to the alleged facts, is available and willing to testify that:

(a) The alleged conduct of the [defendant] real estate licensee failed to meet the standard of professional care applicable to the real estate licensee in the circumstances alleged; and

(b) The alleged conduct was a cause of the claimed damages, losses or other harm.

ORS 31.350(2). If the statute of limitations is about to run, the claimant’s attorney may alternatively submit an affidavit indicating that a good-faith effort was made to consult with an expert and that the attorney will submit a qualifying certification within 30 days of filing. ORS 31.350(3).

§ 9.4-4 Selected Defenses

A defendant in a construction defect case may raise a number of defenses to liability depending on the available evidence, the contract, applicable warranties, and statutes of limitations. Sections 9.4-4(a) to 9.4-4(e) look specifically at these methods of defending against construction defect claims.

§ 9.4-4(a) Contractual Disclaimers and Limitations

See the discussion in § 9.3-4 to § 9.3-4(c).

§ 9.4-4(b) Additional Contractual Limitations on Liability and Types of Damage

Some contracts, including the American Institute of Architects (AIA) standard forms of contract, may include contractual limitations on liability and damages. See § 4.2-1 to § 4.2-5(b) for an explanation of AIA and other standard forms. See chapter 15 for an extended discussion of contractual limitations on liability.

§ 9.4-4(c) Warranty of Specifications—The Spearin Doctrine

An owner impliedly warrants that information and plans provided to the contractor are true so that a contractor cannot be liable to the owner for deficiencies in the owner’s own information or plans. United States v. Spearin, 248 US 132, 136–37, 39 S Ct 59, 63 L Ed 166 (1918). The Spearin doctrine is discussed further in § 4.6-2(b). Oregon cases have embraced the Spearin doctrine: “[a] specification is in the nature of a warranty that, if it is ‘complied with, satisfactory performance will result.’” A.H. Barbour & Son, Inc. v. State Highway Comm’n, 248 Or 247, 257, 433 P2d 817 (1967) (quoting J.D. Hedin Const. Co. v. U.S., 171 Ct Cl 70, 76, 347 F2d 235 (1965)) (when the plaintiff’s contract with the state highway commission included a specification that called for removal of all rust by sandblasting, and unanticipated excessive rust had to be removed through hand-chipping, the warranty of specifications applied and the state was responsible for paying the contractor’s additional costs).

If a contractor changes the plans or specifications, the contractor is responsible for those changes and any liability flowing therefrom. Markwart v. Fry, 60 Or App 431, 436, 653 P2d 1307 (1982) (awarding the owner the cost of removing roof tile and strengthening roof trusses to bring the roof into compliance with code when the contractor changed from composition roof to tile roof but did not modify roof trusses to support the extra weight). Applicability of the Spearin doctrine to residential projects depends on the facts of the case.

§ 9.4-4(d) Failure to Mitigate Damages

An owner in a breach-of-contract case must make reasonable efforts to minimize the loss and cannot recover for portions of the loss that reasonably could have been avoided. Schafer v. Sunset Packing Co., 256 Or 539, 542, 474 P2d 529 (1970).

§ 9.4-4(e) Time Limitations—Particular Issues

Given the differing statutes of limitations that can apply to different claims in a residential construction dispute, the use of statutes of limitations as a defense must be closely analyzed.

A defendant may try to use the various claims and respective statutes of limitations available to claimants to recast a plaintiff’s claims so that a different, shorter statute of limitations applies. See Weston v. Camp’s Lumber & Bldg. Supply, Inc., 205 Or App 347, 358–63, 135 P3d 331, adh’d to as modified on recons, 206 Or App 761, 138 P3d 931 (2006), rev dismissed as improvidently allowed, 342 Or 665 (2007).

Knowledge of unknown defects is not necessarily imputed to the homeowner for claim preclusion purposes. In Soren-Hodges v. Blazer Homes, Inc., 204 Or App 86, 94, 129 P3d 196 (2006), the court did not bar the plaintiff’s second claim, brought six years after the first claim, because the plaintiff did not have actual or constructive knowledge of the facts supporting the second claim at the time of the first claim. Thus, if the statute of limitations has not tolled to preclude all claims in negligence or breach of contract, the resolution of one claim need not affect the homeowner’s ability to bring a subsequent claim.

A claim accrues when the plaintiff discovers the claim. Discovery occurs when the plaintiff “knows or should have known of the existence of three elements: ‘(1) harm; (2) causation; and (3) tortious conduct.’” Riverview Condo. Ass’n v. Cypress Ventures, Inc., 266 Or App 574, 601, 339 P3d 447, 464 (2014) (quoting Gaston v. Parsons, 318 Or 247, 255, 864 P2d 1319 (1994)). The discovery rule also has a “duty to inquire” aspect. Doughton v. Morrow, 255 Or App 422, 429, 298 P3d 578, rev den, 353 Or 787 (2013). When there is a duty to inquire, “the period of limitations would commence at some later point when, after inquiry, the facts reasonably should disclose the existence of an actionable injury.” Doughton, 255 Or App at 429 (quoting Greene v. Legacy Emanuel Hosp. and Health Care Center, 335 Or 115, 123, 60 P3d 535 (2002)). A claim can accrue regardless of whether the plaintiff is aware of the extent of the damage. Duyck v. Tualatin Valley Irr. Dist., 304 Or 151, 165, 742 P2d 1176 (1987) (“‘[i]t is immaterial that the extent of damages could not be determined at the time of the [tort]’ for determining when the statute of limitation commenced to run” (quoting Industrial Chrome Plating Co. v. North, 175 Or 351, 354, 153 P2d 835 (1944) (alterations in Duyck))). A defendant’s repair efforts may also trigger discovery. See Donohoe v. Mid-Valley Glass Co., 84 Or App 584, 588–89, 735 P2d 11, rev den, 303 Or 534 (1987).

The discovery analysis for construction defect claims can be a complex endeavor. See Riverview Condo. Ass’n v. Cypress Ventures, Inc., 266 Or App at 600–03.

Caveat: The Riverview court’s application of a six-year statute of limitations for construction defect claims was subsequently overruled by the two-year statute of limitations adopted in Goodwin v. Kingsmen Plastering, Inc., 359 Or 694, 714, 375 P3d 463 (2016).

The doctrine of laches requires a plaintiff to bring claims within a reasonable period of time from the date of the action that forms the basis of the claim. A contractor may attempt to rely on the doctrine of laches to avoid protracted claims. See Hanns v. Hanns, 246 Or 282, 305, 423 P2d 499 (1967); Ward v. Jarnport, 114 Or App 466, 469 & n 2, 835 P2d 944 (1992), rev den, 315 Or 313 (1993).

§ 9.4-4(f) Comparative Fault

In tort actions, defenses of contributory and comparative fault should be raised. See ORS 31.600. For discussion of comparative negligence, see 1 Torts ch 9 (OSB Legal Pubs 2012).

§ 9.5 RECOVERABLE DAMAGES

Damages and the required documentation to recover them are discussed in detail in chapter 15. Sections 9.5-1 to 9.5-5 touch on some common issues that arise in residential construction.

§ 9.5-1 Cost of Repair or Diminution in Value

The cost of performance of reasonable repairs is the standard for construction-related damages, unless that would result in economic waste. If the cost of reasonable repairs exceeds the cost of the structure, for example, the court applies the diminution-in-value standard, awarding damages based on the loss of value of the structure due to the defendant’s action. See Millers Mut. Fire Ins. Co. of Texas v. Wildish Constr. Co., 306 Or 102, 114, 758 P2d 836 (1988) (awarding damages based on diminution of value when a house was completely destroyed); Hanset v. Gen. Constr. Co., 285 Or 101, 106–07, 589 P2d 1117 (1979) (awarding damages based on cost of repair when a house was damaged). To establish damages for a claim of economic waste, the party bearing the burden of proof must establish the value of the project and any reduction in value as a result of the defendant’s breach of contract. Montara Owners Ass’n v. La Noue Dev., LLC, 357 Or 333, 350, 353 P3d 563 (2015).

In Thomas v. Schmidt, 58 Or App 343, 648 P2d 376 (1982), the court denied the plaintiff’s claim for cost of repair because it would constitute economic waste. Instead, the court awarded the difference in value because the roof was merely discolored, and not otherwise defective. The discoloration affected the aesthetics of the roof but was not the result of poor workmanship. Economic waste would occur because the cost of repair would be disproportionate to the damage that the plaintiff actually suffered. Thomas, 58 Or App at 345.

The two standards for calculating awards—cost of repair and difference in value—may not be mutually exclusive when there is both property damage needing repair as well as a stigma permanently attached to the lot, house, or other structure, affecting its value. See McCormick v. City of Portland, 191 Or App 383, 390, 82 P3d 1043, rev den, 337 Or 616 (2004) (stigma due to landslide on the plaintiff’s property would dissipate, and the court declined to award both cost of repair and diminution of value).

In the case of fraud, the general rule is that the plaintiff is entitled to damages in the amount that naturally and proximately resulted from the fraud. Morasch v. Hood, 232 Or App 392, 400, 222 P3d 1125 (2009). The court may use two valuation methods to determine the amount of damages that naturally and proximately resulted from the fraud. First, the benefit-of-the-bargain rule awards the plaintiff the difference between the actual value of the property and the value of the property as it was fraudulently represented. Second, the out-of-pocket rule simply awards the plaintiff the difference between the fair market value of the property and the actual price paid. Morasch, 232 Or App at 400. If the fraudulent misrepresentation was a warranty of value, the plaintiff may recover according to the benefit-of-the-bargain rule. If, however, the fraudulent misrepresentation did not involve a warranty of value, recoverable damages are limited to the out-of-pocket rule, requiring the plaintiff to show a difference between the objective fair-market value and the actual price paid. Morasch, 232 Or App at 400–01.

§ 9.5-2 Loss of Use; Net Profits

Compensation is available for a claimant’s loss of use of a property during repairs if the claimant has not expressly waived the right to consequential damages in any contractual warranties. See Gaha v. Taylor-Johnson Dodge, Inc., 53 Or App 471, 486–87, 632 P2d 483 (1981) (in the sale of a motor home under the Uniform Commercial Code, consequential damages were not precluded by a limited warranty contained in the contract because the warranty did not expressly exclude consequential damages). Generally, if the damage is permanent, then compensation is measured by the fair market value of the property before the injury. Damage that is only temporary is generally measured by the reasonable cost of repair along with the loss of use for the reasonable period of time needed for repairs. Williams v. Int’l Harvester Co., 172 Or 270, 292, 141 P2d 837 (1943), overruled in part on other grounds by Rogue Valley Mem’l Hosp. v. Salem Ins. Agency, Inc., 265 Or 603, 510 P2d 845 (1973). A plaintiff does not have to show that it incurred out-of-pocket expenses for substitute property to recover loss-of-use damages. Graf v. Don Rasmussen Co., 39 Or App 311, 317–18, 592 P2d 250, rev den, 286 Or 521 (1979).

Net lost profits are recoverable if the plaintiff can prove the existence and amount by a preponderance of evidence (also called reasonable certainty) and if no substitute property was reasonably available. Welch v. U.S. Bancorp Realty & Mortgage Tr., 286 Or 673, 704, 596 P2d 947 (1979). Further, damages for lost production time may be recoverable, even when no loss of earnings results. See McKee Elec. Co., Inc. v. Carson Oil Co., 70 Or App 1, 8, 688 P2d 1360 (1984), aff’d, 301 Or 339, 723 P2d 288 (1986).

§ 9.5-3 Prejudgment Interest

There is no appellate Oregon case law specifically setting forth the standard for whether and when prejudgment interest under ORS 82.010(1)(a) (on “[a]ll moneys after they become due”) is recoverable for construction defect damages. The issue of prejudgment damages was raised, however, in Carlson v. Blumenstein, 54 Or App 380, 385–86, 635 P2d 380 (1981), aff’d as modified, 293 Or 494, 651 P2d 710 (1982), a construction defect case, in which the court affirmed the trial court’s award of prejudgment interest to the plaintiff only on the sums for which the plaintiff requested prejudgment interest and established a foundation for the request.

In Strader v. Grange Mut. Ins. Co., 179 Or App 329, 39 P3d 903, rev den, 334 Or 190 (2002), the court awarded prejudgment interest in a first-party insurance claim for property damages even when liability and the amount of damages were contested. “[E]ven though damages are not ascertainable until issues of fact have been decided by the jury, prejudgment interest is proper; . . . although there are questions of fact about the amounts owed, that does not mean that defendant did not owe sums certain at dates certain.” Strader, 179 Or App at 339 (alterations and citations omitted). On the other hand, SDS Lumber Co. v. Allendale Mut. Ins. Co., 563 F Supp 608, 610 (D Or 1983) holds that an award of prejudgment interest on “[a]ll monies after they become due” is “limited to breach of contract claims where the exact amount of the damages is either ascertained or readily ascertainable and the time from which the interest runs is easily ascertained.”

§ 9.5-4 Attorney Fees

Attorney fees are recoverable if provided for by statute or in the contract. For example, the UTPA, discussed in § 9.4-3(f), allows the court to award reasonable attorney fees to a prevailing party (unless the prevailing party was a defendant in a class-action suit) to ensure that wronged consumers can obtain counsel to prosecute claims that would otherwise be impractical to pursue. ORS 646.638(3)–(4); Honeywell v. Sterling Furniture Co., 310 Or 206, 212 n 4, 797 P2d 1019 (1990).

The Oregon Planned Community Act and the Oregon Condominium Act (discussed in § 9.6 to § 9.6-4) provide that if a declarant, association, or any association member fails to comply with certain laws governing townhomes and condominiums, the prevailing party is entitled to reasonable attorney fees and court costs. ORS 94.780(1) (planned communities), ORS 100.470 (condominiums). It is arguable whether these statutory fee provisions apply to construction defect claims.

§ 9.5-5 Expert Witness Fees

Generally speaking, litigation expenses are not recoverable. C.I.T. Grp./Equip. Fin., Inc. v. Young, 99 Or App 270, 272, 782 P2d 169 (1989), rev den, 309 Or 521 (1990); see ORS 94.780 (under the planned-communities statute, the prevailing party may be awarded attorney fees and court costs, but the statute does not mention litigation costs or the reasonable cost of the suit).

However, if an expert is retained to determine the nature and extent of the defects and the appropriate scope of repairs, expert fees may be recoverable. The court has held that prevailing plaintiffs are entitled to “just compensation,” the amount of which the plaintiff must establish. Millers Mut. Fire Ins. Co. of Texas v. Wildish Constr. Co., 306 Or 102, 117, 758 P2d 836 (1988). Expert inspections are usually necessary to present evidence of what would constitute just compensation.

Practice Tip: A plaintiff may argue that an expert retained to determine the nature and scope of the defects and repairs is often a reasonable and necessary part of the repair process. Factual disputes generally arise over what portion of the expert’s work is compensable diagnostic work as opposed to work performed to prove the plaintiff’s case, which is a noncompensable litigation expense.

§ 9.6 SPECIAL CONSIDERATIONS: CONDOMINIUMS AND PLANNED COMMUNITIES

Condominium projects are governed by the Oregon Condominium Act, ORS chapter 100. Ownership of a condominium includes exclusive ownership of the unit, ORS 100.505(2), which includes nonbearing interior walls, glazing and screening of windows, and outlets of utility service lines within the unit, ORS 100.510. Additionally, each unit owner has an undivided interest in the common elements of the condominium. ORS 100.515(1). Common elements may be general or limited. ORS 100.005(7). General common elements include the land, foundations, exits and entrances, basements, parking areas, and central services such as heating and cooling. ORS 100.005(16). Limited common elements are elements designated for the use of a particular unit or units. ORS 100.005(19).

Caveat: The 2019 Oregon Legislature amended ORS 100.005. After December 31, 2019, the definitions of common elements, general common elements, and limited common elements will be found in subsections (9), (18), and (21), respectively. Or Laws 2019, ch 69, § 34.

Planned community and townhome projects are governed by the Oregon Planned Community Act, ORS 94.550 to 94.783. A planned community is “any subdivision under ORS 92.010 to ORS 92.192 that results in a pattern of ownership of real property . . . in which the owners collectively are responsible for the maintenance, operation, insurance or other expenses relating to any property within the planned community.” ORS 94.550(20)(a). Planned communities consist of zero-lot-line dwellings. A zero-lot-line dwelling is a single-family dwelling unit that is constructed as part of a larger group of units, but that is separated from all other units by a property line. ORS 701.005(20). Any real property or interest in real property owned by the homeowners’ association or by the individual owners as tenants in common is considered common property. ORS 94.550(7).

§ 9.6-1 The Scope of Standing for Associations

The homeowners’ association (for planned communities) and the association of unit owners (for condominiums) is generally the real party in interest and may bring suit on behalf of the individual owners.

For a condominium, the association of unit owners has the authority to institute or intervene in the following legal actions in its own name:

(1) matters relating to collecting assessments and enforcing declarations and bylaws;

(2) matters arising out of contracts to which the association is a party;

(3) actions seeking equitable or other nonmonetary relief regarding matters that affect the common interests of the unit owners, such as abatement of nuisance;

(4) matters relating to or affecting common elements, such as actions for damage, destruction, impairment, or loss of use of any common element;

(5) certain matters relating to the units or interests of unit owners, such as damage, destruction, impairment, or loss of use of a unit or portion thereof; and

(6) any other matter to which the association of unit owners has standing under law or in accordance with the declaration, bylaws, or any articles of incorporation.

ORS 100.405(4)(e).

If the association of unit owners brings suit to recover damages on behalf of owners, it must give the owners an opportunity to opt out of the litigation. The association must follow specific notice requirements set forth in the opt-out statute. ORS 100.490.

For a planned community, the homeowners’ association was formerly not authorized to bring suit unless the association, and not the individual owners, would directly benefit from the court’s decision. Quail Hollow W. Owners Ass’n v. Brownstone Quail Hollow, LLC, 206 Or App 321, 336–40, 136 P3d 1139 (2006), rev dismissed as improvidently allowed, 343 Or 115 (2007) (under ORS 94.630(1), individual townhome owners are the only real parties in interest capable of bringing suit). The 2007 Legislature amended ORS 94.630 (Or Laws 2007, ch 410, § 2a), but it is still the case that planned community associations may bring suit only when the result of the action would benefit the association, and not when the result would solely benefit the individual owners. Mountain High Homeowners Ass’n v. J.L. Ward Co., 228 Or App 424, 435–37, 209 P3d 347 (2009).

Generally, ORS 94.630 is now comparable to the condominium provision set forth in ORS 100.405(4)(e). That is, the homeowners’ association in a planned community may bring or intervene in the following types of claims in its own name:

(1) collection of assessments and enforcement of governing documents;

(2) contract claims when the association is a party;

(3) actions for equitable or other nonmonetary relief regarding matters that affect the common interests of the owners, such as nuisance abatement;

(4) actions for damage, destruction, impairment, or loss of use, relating to or affecting individually owned real property, the expenses for which, including maintenance, repair or replacement, insurance, or other expenses, the association is responsible, or relating to or affecting common property;

(5) certain matters relating to or affecting the lots or interests of the owners; and

(6) any other matter to which the association has standing under law or in accordance with the declaration or bylaws.

ORS 94.630(1)(e).

§ 9.6-2 Statutory Claims

A claimant may bring suit for violations of the Oregon Condominium Act or the Oregon Planned Community Act, such as the provisions requiring assessments, reserves, or warranties. Statutory claims may also rely on statutory prohibitions against fraud or misrepresentation in the advertising and sale of units. Statutory claims for defects in planned communities are more limited because planned communities do not have the same statutory warranties as do condominiums.

Under both the Oregon Condominium Act and the Oregon Planned Community Act, the declarant (i.e., the seller) must conduct an initial reserve study and establish and administer a reserve to cover maintenance costs on the common property for between one and 30 years. ORS 94.595 (planned communities), ORS 100.175 (condominiums). Failure to conduct a reserve study, establish, and administer the reserve is actionable under both acts.

Caveat: The 2019 Oregon Legislature amended ORS 100.175. After December 31, 2019, the declarant for a condominium must establish a reserve fund only if required under ORS 100.175(2), as amended by Or Laws 2019, ch 69, § 41.

The Oregon Condominium Act includes statutory warranties for both the units and the common elements. The declarant (i.e., the seller) must “expressly warrant against defects in the plumbing, electrical, mechanical, structural, and all other components of the newly constructed units and common elements.” ORS 100.185(1). Almost all condominium construction defect claims relate to the general common elements; however, the law has separate warranty requirements for units and general common elements. This statute may be interpreted to make the developer strictly liable for anything in the condominium that could be classified as a defect. However, the distinction between defects and deferred homeowner maintenance may be a question of fact.

The warranty on new condominium units lasts for not less than one year from the date of delivery of possession of that unit to the first unit owner. ORS 100.185(1)(a). A written claim reasonably specifying a breach of the warranty on the unit and the related limited common elements must be delivered to the declarant before the warranty expires. ORS 100.185(2).

The warranty on new condominium units also covers general common elements for not less than one year from the initial conveyance of title to a unit, or the completion of the construction of the specific general common element, whichever is later. ORS 100.185(1)(b). A written claim reasonably specifying a breach must be delivered to the declarant within two years of the warranty’s expiration (but the defect must exist before the warranty expires). ORS 100.185(2).

The warranty claim cannot be commenced later than four years after the warranty expires. ORS 100.185(2). For construction defect claims, this generally creates a five-year period in which an initial purchaser can bring a warranty claim (the one-year warranty period for general common elements plus four years). The defect must exist during the one-year warranty period and written notice reasonably specifying the breach must be provided within two years. The association of unit owners likely owns warranty claims regardless of whether some unit owners are subsequent purchasers.

Query: Do condominium warranties run with the unit and general common elements, such that the declarant will not be able to argue that subsequent purchasers’ rights are limited on the grounds that there is no contract between the declarant and subsequent purchaser? The warranty provision expressly states that the unit sales agreement between the initial purchaser and the declarant “[s]hall name the association of unit owners as an express beneficiary with regard to general common elements.” ORS 100.185(1)(f). The warranty provisions also indicate the warranties “[s]hall exist on a unit” (ORS 100.185(1)(a)) or “[s]hall exist on the general common elements” (ORS 100.185(1)(b)) as opposed to language indicating that the warranty is for the benefit of the initial purchaser of the unit.

The express warranties within the Oregon Condominium Act supplant implied warranties. ORS 100.185(1)(e). If the statutory warranties are not given in the manner prescribed by ORS 100.185(1)(e), traditional implied warranties, such as the warranty of habitability, may apply. Ass’n of Unit Owners of Bridgeview Condominiums v. Dunning, 187 Or App 595, 613–14, 69 P3d 788 (2003).

Beyond warranty provisions, the Oregon Condominium Act also includes actionable provisions prohibiting fraud, deception, and falsity (ORS 100.770); prohibiting false or misleading advertising (ORS 100.775); and prohibiting waivers of legal rights created by the act (ORS 100.780).

Owners in planned communities do not have analogous statutory warranties and likely must rely on implied warranties. See Yepsen v. Burgess, 269 Or 635, 639–42, 525 P2d 1019 (1974) (purchase of a new home that was built and sold by the defendant). Subsequent purchasers of townhomes will have no contractual relationship with the developer. With no contract or statutory warranty, a subsequent purchaser may be limited to negligence claims against the developer or a claim against the seller of the townhome. Recorded warranties would also apply under ORS 701.605.

§ 9.6-3 Condominium Conversions

Condominium conversions present unique issues. The Oregon Condominium Act provides a specific method by which to notify tenants of an apartment or a hotel building that the apartments are to be converted to condominiums. ORS 100.305. The Oregon Condominium Act also requires certain express warranties for new units (discussed in § 9.6-2), but when an existing apartment or hotel is converted to condominiums, it is not clear that such units are “newly constructed units” under ORS 100.185. However, as with new condominiums, a developer of a conversion condominium must still create and administer an appropriate reserve and conduct a condition assessment. ORS 100.175 (requirements of developers); ORS 100.300–100.320 (provisions and exceptions specific to condominium conversions without limiting the applicability of ORS 100.175). Likewise, a developer cannot engage in fraudulent or deceitful activity or employ false or misleading advertising. ORS 100.770; ORS 100.775.

Disclaimers are typically used in the sale of converted condominiums. In addition to common-law requirements regarding disclaimers, developers cannot use disclaimers to get around the requirements and prohibitions in the Oregon Condominium Act. ORS 100.780.

§ 9.6-4 Attorney Fees

The Oregon Condominium Act includes a right to attorney fees:

In any suit or action brought by an association of unit owners to foreclose its lien or to collect delinquent assessments or in any suit or action brought by declarant, the association or any owner or class of owners to enforce compliance with the terms and provisions of the Oregon Condominium Act, the condominium declaration or bylaws, including all amendments and supplements thereto or any rules or regulations adopted by the association, the prevailing party shall be entitled to recover reasonable attorney fees therein and in any appeal therefrom.

ORS 100.470. The statutory warranties set forth in ORS 100.185 (discussed in § 9.6-2) are part of the Oregon Condominium Act. Thus, claims made under those statutory warranties arguably include a right to recover reasonable attorney fees.

Practice Tip: The defense often argues that the intent of the attorney fee provision is not to create a general right to attorney fees for improper construction; rather the provision was intended to create a right to attorney fees for failures of the declarant or association to follow a specific provision of the Oregon Condominium Act—that is, failure to include a required provision in the unit sales agreement; failure to follow statutory procedures for amending declarations; failure to follow procedural requirements for board meetings; use of fraudulent, deceptive, or false statements; attempts to limit rights created by the Oregon Condominium Act; and so on. Regardless, unit sales agreements generally include separate attorney fee provisions.

The Oregon Planned Community Act is less clear on whether attorney fees are available for a construction defect claim, although related claims may be within its purview. The applicable statute, ORS 94.780(1), states:

Failure of the declarant, association, any association member or any other person subject to [the Oregon Planned Communities Act] to comply with the applicable sections of [the act] shall be cause for suit or action to remedy the violation or to recover actual damages. The prevailing party is entitled to reasonable attorney fees and court costs.

However, the Oregon Planned Community Act does not include any reference to warranties or construction quality. Based on this difference from the Oregon Condominium Act, it is difficult to characterize a construction defect claim as a violation of the Oregon Planned Community Act, thus making it unclear whether the attorney fee provision applies to such claims.

Prevailing parties bringing related claims, such as for a breach of fiduciary duty or fraud in the creation and maintenance of the reserve account (ORS 94.595), or a failure to appropriately turn over the planned community to the homeowner association (ORS 94.616(1)), may be able to collect attorney fees. To the extent that plaintiffs can causally connect a declarant’s failure to meet its statutory obligations to the construction defects at issue—for example, failure to disclose defect issues—plaintiffs may have a statutory claim for attorney fees.

Appendix 9A Abbreviations

CCB

Construction Contractors Board

Oregon Condominium Act

ORS chapter 100

Oregon Planned Community Act

ORS 94.550 to 94.783

UTPA

Unlawful Trade Practices Act, ORS 646.605–646.652

Jack LevyMarch 24, 2020