Construction Defects

Important for Buyers and Builders

The following is from the ORC:

Always consult legal consul!

Sec. 1312.01. As used in this chapter:

(A) “Construction defect” means a deficiency that arises directly or indirectly out of the construction or the substantial

rehabilitation of a residential building. “Substantial rehabilitation” includes the addition of a room and the removal or

installation of a wall, partition, or portion of the structural design. 

(B) “Dwelling action” means any civil action in contract or tort for damages or indemnity brought against a residential

contractor for damages or the loss of use of real property caused by a construction defect.

(C) “Owner” means an owner or a prospective owner of a residential building or a dwelling unit in a residential building who

enters into a contract with a residential contractor for the construction or substantial rehabilitation of that residential

building or unit.

(D) “Residential building” means a structure that is a one-family, two-family, or three-family dwelling house or a dwelling

unit within that structure, any accessory structures incidental to that dwelling house, and a unit in a condominium

development in which the owner holds title to that unit. “Residential building” includes any structure that is used as a

model to promote the sale of a similar dwelling house.

(E) “Residential contractor” means a person or entity who, for pay, enters into a contract with an owner for the construction

or the substantial rehabilitation of a residential building and who has primary responsibility for the construction or

substantial rehabilitation of a residential building.

(F) “Accessory structure” has the same meaning as in section 3781.06 of the Revised Code.

Sec. 1312.02. This chapter applies only to an owner and a residential contractor who enter into a contract for the construction

or the substantial rehabilitation of a residential building.

Sec. 1312.03. Upon entering into a contract for the construction or the substantial rehabilitation of a residential building, a

residential contractor shall provide the owner with notice of the contractor’s right to offer to resolve any alleged construction

defect before the owner may commence a dwelling action or arbitration proceedings against the contractor. The contractor

may include the notice in the contract or provide the notice as a separate document delivered at the time the owner signs the

contract. The notice shall be conspicuous and in substantially the following form:

OHIO LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A

LAWSUIT OR COMMENCE ARBITRATION PROCEEDINGS FOR DEFECTIVE CONSTRUCTION AGAINST THE

RESIDENTIAL CONTRACTOR WHO CONSTRUCTED YOUR HOME. AT LEAST SIXTY DAYS BEFORE YOU FILE

A LAWSUIT OR COMMENCE ARBITRATION PROCEEDINGS, YOU MUST PROVIDE THE CONTRACTOR WITH

A WRITTEN NOTICE OF THE CONDITIONS YOU ALLEGE ARE DEFECTIVE. UNDER CHAPTER 1312. OF THE

OHIO REVISED CODE, THE CONTRACTOR HAS AN OPPORTUNITY TO OFFER TO REPAIR OR PAY FOR THE

DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER THE CONTRACTOR MAKES. THERE ARE

STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY

AFFECT YOUR ABILITY TO FILE A LAWSUIT OR COMMENCE ARBITRATION PROCEEDINGS.

Sec. 1312.04. (A) No owner shall commence arbitration proceedings or file a dwelling action against a residential contractor

unless, at least sixty days before commencing the proceedings or filing the action, the owner provides the contractor with

written notice of the construction defect that would be the basis of the arbitration proceedings or the dwelling action. The

notice shall be in writing and mailed, sent by telegram, delivered in person, or sent by any means the contractor has

indicated communications may be sent, including facsimile transmission and electronic mail. The notice shall substantially

comply with the requirements set forth in division (B) of this section.

(B) Any notice that an owner provides to a contractor pursuant to this section shall substantially do all of the following:

(1) Assert a claim involving a construction defect by itemizing and describing those construction defects;

(2) Include or attach a copy of any documentation concerning the construction defects prepared by a person who inspected

the residential building for the owner;

(3) Include the name, address, and telephone number of the owner and the contractor and the address of the building that is

the subject of the claim.

(C) After receiving a notice of defects, a contractor may request an owner to provide a description of the cause of the defects

and the nature and extent of repairs necessary to remedy the defects. An owner may provide this information if the owner

has knowledge of the cause of the defects and the repairs necessary to remedy those defects.

(D) If a contractor files a mechanics lien or commences any type of arbitration proceedings or legal action against an owner,

this chapter does not apply, and the owner immediately may counterclaim, commence arbitration proceedings, or file a

dwelling action against the contractor.

Sec. 1312.05. (A) A residential contractor shall provide the owner with a good faith written response to any notice provided

pursuant to section 1312.04 of the Revised Code. The response shall be provided within twenty-one days after the owner

mailed the notice, delivered it by personal delivery, or transmitted it by telegram, facsimile, or electronic mail. In the

response, the contractor shall offer to take one of the following actions:

(1) Inspect the residential building that is the subject of the claim;

(2) Compromise and settle the claim without an inspection;

(3) Dispute the claim.

(B) If a contractor fails to respond as required by division (A) of this section or disputes the claim, an owner is deemed to

have complied with this chapter and may commence arbitration proceedings or file a dwelling action without further notice

to the contractor.

(C)(1) If an owner rejects a contractor’s offer to inspect the property or to compromise and settle a claim, the owner shall

notify the contractor of that rejection within fourteen days after receiving the contractor’s offer. The rejection notice shall

be in writing and include a reason for the rejection.

(2) After providing a rejection notice, an owner has complied with this chapter and may commence arbitration proceedings

or file a dwelling action without further notice to the contractor.

Sec. 1312.06. (A) If an owner accepts a residential contractor’s offer to inspect the residential building, the owner shall notify

the contractor of that acceptance within fourteen days. After accepting the offer to inspect, the owner shall allow the

contractor reasonable access to the building during normal working hours. The contractor shall inspect the building within

fourteen days after the owner accepts the offer. The contractor shall take reasonable measures to determine the nature and

cause of the construction defects and the appropriate remedy. The measures the contractor takes may include, but are not

limited to, testing.

(B) Within ten days after a residential contractor conducts an inspection as described in this section, the contractor shall

provide the owner with one of the following:

(1) A written offer to remedy the defects at no cost to the owner. The offer shall be accompanied by an inspection report, a

prediction of the additional construction work necessary to remedy each defect, and a timetable for completing the work

necessary to remedy the defects.

(2) A written offer to settle the claim;

(3) A written statement asserting that the contractor does not intend to remedy the defects.

(C) An owner has complied with this chapter and may commence arbitration proceedings or file a dwelling action without

further notice to the contractor if any of the following occur:

(1) The contractor does not inspect the property within fourteen days after the owner accepts the offer to inspect.

(2) Following an inspection, the contractor does not provide a written response.

(3) The contractor responds that the contractor does not intend to remedy the defects.

(4) The contractor fails to remedy the defects in the manner the contractor describes or within the timetable the contractor

provides.

(D) If a residential contractor makes or provides for repairs or replacements to remedy a construction defect, the contractor

may take reasonable steps to document the repair or replacement and to inspect the repair or replacement or have it

inspected.

(E) If an owner accepts an offer that a residential contractor makes in compliance with this chapter to compromise and settle

the claim, to remedy the defects, or to settle the claim and the contractor fulfills that offer in compliance with this chapter,

the owner is barred from bringing a dwelling action or commencing arbitration proceedings for the claim.

Sec. 1312.07. Unless otherwise indicated in this chapter, an owner has complied with this chapter and may commence

arbitration proceedings or file a dwelling action sixty days after the owner mails, delivers, sends by facsimile transmission or

electronic mail, or otherwise provides the residential contractor with a defect notice pursuant to division (A) of section

1312.04 of the Revised Code.

Sec. 1312.08. (A) All applicable statutes of limitation or repose are tolled from the time the owner sends a notice of defect to

a contractor pursuant to section 1312.04 of the Revised Code until the owner has complied with this chapter.

(B) If an owner files a dwelling action or commences arbitration proceedings without having complied with this chapter, the

court or arbitrator shall dismiss that action or those proceedings without prejudice. The owner may again file a dwelling

action or commence arbitration proceedings after complying with this chapter.

(C) This chapter does not apply to any civil action in tort alleging personal injury or wrongful death to a person resulting

from a construction defect.