Retroactive Application of Statute of Repose Found Unconstitutional

Kegler Brown Construction Newsletter

Ohio and most other states have a "statute of repose" which basically provides that a certain amount of time after substantial completion one cannot be sued for construction defects or other injuries. For example, Ohio currently has a ten year statute of repose set forth in R.C. §2305.131.

The Supreme Court of Ohio was faced with a case where a condominium complex was finished in 1990 and defects were not discovered until 2003. As Ohio had no enforceable statute of repose in 2003 (it had been declared unconstitutional), the Supreme Court ruled that the later enacted Ohio statute of repose could not be applied retroactively to bar the defect claim.

Instead the Supreme Court ruled that the condo association had four (4) years after the date of discovery of the defect to file its claim and had timely done so. Oaktree Condominium Assn., Inc. v. Hallmark Bld. Co., 2014-Ohio-1937.

This case means that some construction defect claims, by condo associations or others, may survive even though construction was completed more than a decade ago.