Construction Law Watch

Coastal Properties Require Special Maintenance

Posted in CAI Oregon, Events

Join the CAI Oregon Chapter when it presents its full day seminar on The Basics of Homeowner Association Management.  Rob Wilkinson from Ball Janik LLP will be on a panel discussing risk management issues and  statutory requirements and best practices for self-managed associations.

8:30 AM – 4:00 PM
Lincoln City, Oregon

Course materials for entire day are designed to address the unique issues confronting coastal communities. Subject areas include:

  • Risk Management including insurance specific to coastal properties, emergency and disaster planning
  • Collections and Liens
  • Rules and Enforcement
  • Communication and Conflict Resolution
  • Deferred Maintenance and Coastal Specific Issues
  • Statutory Requirements and Best Practices for Self-Managed Associations (Hierarchy of Governing Documents)


Surftides Lincoln City
2945 Northwest Jetty Avenue
Lincoln City, OR 97267

Special room rate + taxes through Surftides Lincoln City
541-994-2191 (mention CAI Oregon training session)

How Much

$40 for CAI members and non-members

Includes breakfast, lunch, and course materials

Click here to register

Construction Defect Litigation: Owners’ Rights and Risk Management Strategies

Posted in Construction Management Association of American, Events, Owner's Rights

Molly Washington Speaks at Oregon Chapter CMAA Event

5:30 PM – 7:30 PM
Portland, Oregon

Molly A. Washington, an associate in Ball Janik’s Litigation, Construction Defect, and Insurance Recovery practices, will speak to the Construction Management Association of America’s Oregon chapter about the state of construction defect law in Oregon and ways that owners’ representatives can ensure the owners’ rights are being protected, including risk management strategies, key contract provisions, and inspection recommendations.

Registration Ends on February 10, 2015

Click here to register

“Top 10 Rules of Risk Management” at the Home Builders Association of Metro Portland

Posted in Ball Janik News, Building Managers, Construction Claims, Construction Contracts, Events, Risk Management

Jacob Zahniser Presents “Top 10 Rules of Risk Management” and Serves on Legal Panel

Home Builders Association of Metro Portland | Contractor Business Management Series – Session I

9:00 AM – 3:00 PM
Lake Oswego, Oregon

The all-new Contractor Business Management Series consists of three sessions focused on core areas of business management to help sharpen your skills. Whether you’re thinking of starting a business or are a newer owner and manager these courses will improve your knowledge and refresh your memory. The Contractor Business Management Series is specifically tailored for the construction industry and is perfect for builders, remodelers and subcontractors who own, manage, or hope to own in the future.

Topics included in this course:

Top 10 Rules of Risk Management – Jacob Zahniser, Ball Janik LLP

Understand how your day-to-day business practices can help you avoid litigation
Learn how to work with your business partners, vendors, and subcontractors to set expectations
Understand how to identify and mitigate risks early in your projects

Click here to register

Continue Reading

Unwritten Rules: Oregon Could Learn How Implied Warranties are Done from Iowa.

Posted in Implied Warranties, Warranties

Oregon’s case law regarding implied home warranties have long floated derelict, lacking the clarity needed for effective consumer protection and simultaneously subjecting developers to uncertain liability.  Now 40 years since Oregon’s adoption of implied warranties, recent decisions from other states focus our attention on the lack of evolution and refinement here in Oregon.

Warranties and Implied Warranties Generally

The term “warranty” describes a right of correction or repair associated with the purchase of a specific item.  Warranties are typically written, describing the scope of the protection, the time period, and the logistics of making a claim.  Common examples are folded-paper inserts found in consumer purchases such as toasters and televisions, the language of which is remarkable for uselessness and indecipherability.  However, most consumers do not realize that the law provides warranties not found in any fine print: so-called “implied warranties.”  Implied warranties for consumer goods are found within the Uniform Commercial Code (“UCC”) adopted throughout the United States.  These UCC implied warranties are almost perfectly uniform in language and interpretation, which makes them fairly predictable for both consumers and manufacturers.

Home Warranties Specifically

Implied warranties in home purchases are far less uniform and less predictable.  Continue Reading

Don’t Let Your Construction Project Go Up in Smoke – What the Passing of Measure 91 Means for Employers in Oregon

Posted in Marijuana and the job site
Light a Joint

This article appeared online (Dec. 11, 2014) and in print (Dec. 3, 2014) in Cascade Business News, written by Ball Janik LLP attorneys Peter Hicks and Jacob Zahniser.

In Washington, and soon-to-be Oregon since the passage of Measure 91, construction workers and employees may legally possess and use marijuana. What does that mean for the job site?

Although construction workers and employees may now legally possess and use marijuana, nothing under Washington or Oregon law permits any worker or employee to possess or use marijuana while he or she is on the job.

Considering substance use is recognized as prevalent among construction workers, employers such as general contractors, developers and owners should take necessary and appropriate steps to prevent employees from operating dangerous and complex machinery, performing construction work, and otherwise completing construction-related tasks while under the influence of marijuana.  Read more here.

Oregon Court of Appeals holds cutoff time for negligent construction claims could be six years from discovery of a claim.

Posted in Architect, Construction Claims, Construction Defect, Construction Dispute, Oregon Construction Cases, Oregon Court of Appeals, Statute of Limitations, Statute of Repose

We spend a lot of effort on this blog talking about the time deadlines for property owners to sue contractors and design professionals for negligence.  There are two reasons for this:  first, the law on this is rapidly evolving in Oregon.  Second, it is of the utmost importance to contractors, design professionals, and property owners because there are very few absolute defenses to a claim for negligent construction besides the timing of claims.  Also, since many property owners rightfully loathe to dive into a lawsuit, they may delay filing until absolutely necessary.

The news keeps coming.  At the end of October, the Oregon Court of Appeals decided Riverview Condominium Association v. Cypress Ventures, Inc., et al., Case No A150586 (October 29, 2014).  There, the defendants developed testimony and documents evidencing that various types of water leaks had been affecting the property for several years.  The case discusses the “statute of repose” (the drop-dead deadline date for bringing any claims) as well as the “statute of limitations” (the time limit on bringing various claims). Continue Reading

Past the Statute of Limitations for a Construction-Defect Case? Try Looking at Your First-Party Property Policy for Coverage.

Posted in Construction Claims, Construction Contracts, Construction Defect, Contract Clause, Uncategorized

The following is a report from my blog post on The Policyholder Report on November 20, 2014.

The Seventh Circuit just released an opinion in Strauss v. Chubb Indemnity Insurance on November 18, 2014, upholding coverage for insureds who discovered the presence of long-term water damage five years after their insurance policies had expired, and likely well after the statute of limitations passed for a construction-defect action. With this opinion, the Seventh Circuit joins with other jurisdictions that have determined there is coverage for long-term latent defects that go undiscovered for years.

The insureds constructed a new home in Wisconsin that was completed in 1994. They moved in and purchased insurance with various insurers through 2005. But unknown to the insureds, the defective construction in 1994 had been allowing water to infiltrate their home. These damages went undiscovered until 2010, five years after the last insurance policy had expired and likely beyond the time allowed to file a lawsuit against the negligent contractor. The insurers denied coverage, arguing that there was no coverage for the water damage because it didn’t “manifest” until 2010 and a “manifestation trigger” applies to all first-party property insurance claims. Not only is that an incorrect statement of the language of the policies, it is also a blatant misstatement of the law. The district court rejected the insurers’ arguments. So did the Seventh Circuit. Continue Reading

A Condominium Conundrum: When does the one-year limitations period to challenge the validity of an amendment to a condominium declaration not apply? When the amendment is invalid.

Posted in Condo Conversion, Condominium, Ridpath Hotel, Statute of Limitations

Division III of the Washington Court of Appeals published an opinion two days ago interpreting, for the first time, RCW 64.34.264(2), the one-year statute of limitations for challenges to the validity of an amendment to a condominium’s declaration. In Club Envy of Spokane, LLC, et al v. The Ridpath Tower Condo. Assoc. et al., No.31913-0-III, the Court held the one-year limitations period does not apply when the amendment is “void from its inception.” In other words, when the amendment was improperly passed under the Condominium Act, the one-year limitations period to challenge the amendment’s validity does not apply.

The Unique Facts of Club Envy

The facts in Club Envy are rather unique. In February 2008, the Ridpath Tower Condominium was created and the Association formed. Continue Reading

And Then There Were Two: The Oregon Ct. of Appeals Finds There Are Two Possible Statutes of Repose for Negligent Construction Claims

Posted in Construction Claims, Construction Contracts, Construction Defect, Construction Defect Repairs, Construction Dispute, Consumer Protection, Oregon Construction Cases, Oregon Court of Appeals, Statute of Limitations, Statute of Repose, Substantial Completion

The Oregon Court of Appeals recently issued a surprising decision regarding the ultimate timeline to file a construction defect claim involving a “spec home.” (A “spec home” is a house which a builder or developer constructs not for a specific owner but on speculation that the home will sell to the general public upon completion.)  In Shell v The Schollander Companies, Inc. (September 24, 2014), the Court of Appeals decided that ORS 12.115, as opposed to ORS 12.135, supplies the appropriate ten-year statute of repose for an owner seeking a negligent construction claim where the owner does not have a traditional “construction contract” with the builder.  The plaintiff in Shell was the original owner of the home.  She purchased the property midway through construction from the original developer/builder using a real estate sales agreement to complete the transaction. Continue Reading

Oregon Court of Appeals Case Decided Yesterday: Policyholder Wins

Posted in Insurance Coverage, Oregon Court of Appeals

Be sure to check out Dwain Clifford’s post on The Policyholder Report:  Oregon Court of Appeals Rejects Insurer’s Heads-I-Win, Tails-I-Win Policy Interpretation.

The Oregon Court of Appeals yesterday issued an opinion confirming that Oregon law remains faithful to the bedrock principle in coverage disputes that ambiguities in a policy must be resolved in favor of the insured.

In Patton v. Mutual of Enumclaw Ins. Co. (Oct. 8, 2014), an insured seeking coverage under his homeowner’s policy found himself between a rock and hard place, at least under the insurer’s erroneous attempt to link two unconnected policy provisions to deny coverage.  Read it here.