Deconstructing Warranties in the Construction Industry
The legal concept of warranty has been amusingly described as “a freak hybrid born of the illicit intercourse of tort and contract.” Less whimsically, when reduced to its essentials, a warranty is a quality standard that a seller is required to maintain. The doctrine of warranty has its origins in the common law development of tort and contract, and originated as a mechanism to deal with misrepresentations in the sale of goods. Prosser and Keeton explain:
Early in the 19th century, the slow growth of a business practice by which reputable sellers stood behind their goods, and a changing social view point toward the seller’s responsibility, led to the development of “implied” warranties of quality, which were attached by the law to certain types of sales, and which in effect made the seller an insurer of his goods.
Over time, the United States construction industry has grown to rely upon implied warranties to accompany and protect transactions. Bruner and O’Connor, in their construction law treatise, summarize the increased need for construction industry warranties:
For over a century American jurisprudence has supplemented the express terms of construction contracts with such implied duties and warranties as were deemed necessary to effectuate the intentions of the parties apparent in both the expressed terms and the obvious but unexpressed assumptions, circumstances and interdependent relationships upon which the parties relied in entering into the contracts.
As a result, today’s construction law practitioners find themselves trying to determine what different construction-related warranties might exist, what they mean and how to bring or defend breach of warranty causes of action. Two main warranty doctrines exist: express and implied, but additional discrete warranty theories and exceptions exist under those umbrellas. A working knowledge of the most common construction-related warranties, what warranty periods mean, and the applicable limitations period under Florida law is a valuable part of a construction lawyer’s arsenal.
Express Warranties
Construction projects are typically blanketed with express warranties, which appear at first blush to be extremely straightforward in their use and purpose. For example, general contractors and subcontractors typically expressly warrant that their work will be free from defects and conform to the contract documents. Initial determinations, however, need to be made in some situations regarding whether an express warranty was, in fact, conferred. In Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 102 (Fla. 4th DCA 1969), for example, the homeowner sued the flooring subcontractor for damages arising from defective installation of vinyl and hardwood flooring in a new home after the flooring became discolored and loose. The homeowner relied upon an express warranty that the flooring was of merchantable quality. This was based on the fact that the homeowner had merely inquired of the flooring subcontractor whether it was feasible to lay hardwood and vinyl flooring throughout the house. Not surprisingly, the appellate court affirmed the trial court’s denial of leave to file a fourth amended complaint for failure to state a cause of action. In Weimar, the Fourth District Court of Appeal defined express warranty as “a statement or representation made by the seller of goods, contemporaneously with, and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them.”
The court went on to discuss five essential allegations for pleading a cause of action based on warranty:
1. Facts in respect to sale of the product or other circumstances giving rise to warranty, express or implied, identifying the type of warranties accompanying the pertinent transactions involved.
2. Reliance upon the representations by the seller or skill and judgment of the seller where the action is based upon express warranty or warranty of fitness for a particular purpose.
3. Circumstances of the injury as caused by the breach of warranty.
4. Notice of breach of warranty.
5. Injuries sustained and damages.
Intertwined with the aforementioned breach of warranty elements are also the essential allegations that the warranties were part of the bargain and that the buyer and seller were in privity. For example, in a contract between a purchaser and developer, warranties cannot be validly conferred at a later time, such as at closing on the sale of the property. Moreover, a failure to establish privity between the recipient and warrantor can be fatal to a breach of warranty cause of action.
Inevitably, express warranties will not contemplate every contingency and exception in the law. For example, in Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So. 2d 548, 552 (Fla. 1st DCA. 1970), a subcontractor was excused from its express warranty to provide good quality construction materials because it was obligated by the project specifications to provide one particular brand of brick. The subcontract stated: “Unless otherwise specified all materials shall be new and both workmanship and materials shall be of good quality.” The bricks clearly contained a latent defect which caused water intrusion, but the First District Court of Appeal found that because the subcontractor was required by the specifications to furnish a certain distinctive type of brick, produced by a single manufacturer, it was held harmless from its promise to furnish materials “of good quality.”
Another exception to the letter of an express warranty occurs when the seller makes statements or takes actions, upon which the buyer relies, contrary to the spirit and letter of the warranty. When sellers orally agree to warrant conditions different from or contrary to those contained in their express warranties, they may be found to have modified and expanded the warranties. Consider the case of New Nautical Coatings, Inc. v. Scoggin, 731 So. 2d 145, 146-47 (Fla. 4th DCA 1999), which, although involving the UCC, is instructive in the construction context. In that case, a manufacturer of primers and antifouling paints for coating boat bottoms (to prevent barnacle growth) twice orally approved the application of its product to the bottom of a boat that was not properly sandblasted down to the steel, as the express warranty required. The appellate court held that the manufacturer’s oral statements that it would warranty its products (despite the purchaser’s nonconforming installation technique of the products) “modified and expanded” the written express warranty. Accordingly, the Fourth District Court of Appeal affirmed the trial court’s finding that the boat coating manufacturer breached its express warranty. The problem of modifying and expanding construction warranties is ripe for construction cases, where subcontractors and materialmen commonly install and provide various materials (e.g., waterproofing membrane, ceramic tile roofing) through methods that may not meet the letter of manufacturer or contractor’s warranty requirements, but which were supervised and/or approved by the manufacturer/warrantor during construction. Thus, the factual situations surrounding express warranties for construction must be examined for exceptions whereby a seller/warrantor compromised its warranty, either through contract or its actions.
Implied Warranties
The First District Court of Appeal related the following history of the use of implied warranties when it stated:
Implied warranties were recognized in English courts by the early 19th century. Suits for breach of warranty were first brought in tort as actions on the case for deceit, the breach treated as an offense against society rather than as a matter merely between private litigants. Warranty actions in assumpsit were not established until the close of the 18th century.. . .
While express warranties were routinely enforced in the United States, implied warranties were slow to be recognized. With some exceptions, the general rule of law for the greater part of the 19th century was caveat emptor. . . . With mass production, this doctrine gradually receded and the notion of sellers’ implied warranties of quality expanded.
Moreover, the Third District Court of Appeal defined the unique concept of implied warranty as follows:
An implied warranty arises by operation of law and exists regardless of any intention of the vendor to create it; such warranty springs from the vendor’s breach of some duty which amounts to taking advantage of the purchaser by reason of some superior knowledge in the vendor or the reliance by the purchaser on the vendor’s representation or judgment.18
Consistent with the historically “protective” nature of implied warranties, lawmakers have decided that certain classes of people are entitled to warranty protection in certain situations. These classes include buyers of commercial goods, condominium unit purchasers, condominium developers, and consumers. A brief overview of statutory implied warranties is given here, as each one can be further discussed in its own article.
The Uniform Commercial Code, codified at F.S. Ch. 672, governs transactions involving the sale of goods, logically including transactions involving construction materials and components. The UCC contains implied warranties of merchantability and fitness for particular purpose that apply to the sales of goods.
F.S. Ch. 718 provides several important implied warranties regarding condominiums. For example, developers are deemed to have granted condominium unit purchasers implied warranties of fitness and merchantability with minimum warranty periods on particular improvements that begin running upon designated events occurring. Likewise, developers are made beneficiaries of implied warranties of fitness on the work and materials supplied by their contractors, subcontractors, and suppliers. Additionally, regarding residential communities that have been converted into condominiums, Part VI of F.S. Ch. 718 provides that developers are obligated to provide either warranties or other financial protections (e.g., reserve accounts) for existing properties that are converted to residential condominiums.
The Magnuson-Moss Warranty Act, although utilized commonly in warranty disputes involving automobiles, is a federal statute providing remedies in consumer disputes and foreseeably applies to construction cases, provided the criteria under the act are met. The act allows a consumer to bring suit against a warrantor in any state for failure to comply with its obligations under a written or implied warranty. way of illustration in the construction context, Magnuson-Moss claims have been brought against manufacturers of mobile homes and manufactured homes.
In addition to statutory implied warranties, there exists a panoply of other situations whereby implied warranties arise from the nature of the transaction, according to common law. New home sales is one segment of the construction market that relies heavily on implied warranties. Florida, however, currently does not provide statutory implied warranties to accompany new home sales, as do some states. Maryland, for example, has codified implied warranties applicable to the sale of new homes, providing that as to the improvement, 1) it is free from faulty materials; 2) it is constructed according to sound engineering standards; 3) it is constructed in a workmanlike manner; and 4) it is fit for habitation. Such a statutory scheme is desirable and would undoubtedly streamline new home warranties. For the time being, however, Florida practitioners must consult case law to ascertain the various types of (non-UCC) implied warranties pertaining to new construction home sales.
The most commonly available causes of action for breach of implied warranties in new home construction can be cataloged into three groups according to Florida case law: 1) failure to construct according to plans; 2) failure to construct in a good and workmanlike manner; and 3) failure to construct a residence which is reasonably habitable. These construction-related implied warranties are discrete, but also commonly interrelated; all can forseeably arise in a single project. For example, in Schmeck v. Sea Oats Condominium Association, Inc., 441 So. 2d 1092, 1097 (Fla. 5th DCA 1983), the Fifth District Court of Appeal reversed the lower court’s judgment against the condominium association and unit owners, finding that the defendant developer did not construct the building according to the plans and specifications, that defective workmanship was apparent in construction, and that the building was not reasonably fit as a residence due to water leaks and seepage. Accordingly, the court stated: “It is now well established that a developer may be held liable for damages for breach of implied warranties in failure to construct according to plans or in a workmanlike or acceptable manner, or for failure to provide a unit or building which is reasonably habitable.” Each of these implied warranties is discussed in turn.
Implied Warranty to Construct According to Plans
Florida case law appears to hold that a cause of action for breach of implied warranty to construct according to plans consists of the following basic requisite elements to be alleged and proven:
• The builder owed a duty to construct the building according to the building plans filed with the local governmental authority.
• The builder failed to construct the building according to said plans.
• The buyer suffered damages from builder’s failure to construct the building according to said plans.
In David v. B&J Holding Corp., 349 So. 2d 676, 678 (Fla. 3d DCA 1977) (a case which pre-dated the statutory warranties for condominiums from developers), the condominium unit buyers claimed to easily hear voices and sounds coming from adjacent units and discovered that the builder used little or no wall insulation. The court held that the builder’s failure to construct according to the specifications constituted a breach of implied warranties of fitness and merchantability because the builder impliedly warranted to the buyers that their unit would be constructed in accordance with the specifications contained in the building plans that were on file with the appropriate governmental authority. Moreover, the court held that the builder was under a duty to file any modified specifications with the applicable governmental authority for its approval and to make the new specifications part of the public record. Builders are not required to deliver the perfect house, but under Florida law, buyers damaged by defects due to a builder’s failure to construct according to the plans filed with the local governmental authority are entitled to the cost of correcting the defects or completing the omissions.
Implied Warranty to Construct in Good, Workmanlike Manner
Constructing to meet a standard of quality is also essential to a fully functional project without defects. The concept of constructing improvements to real property in a good and workmanlike manner is akin to the necessity of providing goods that are fit for a particular purpose, as recognized by the Fifth District Court of Appeal in Lochrane Engineering, Inc. v. Willingham Realgrowth Investment Fund, Ltd., 552 So. 2d 228, 232 (Fla. 5th DCA 1989), when it stated:
The contractual duty of one who delivers a product or manual services, is to conform to the quality or quantity specified in the express contract, if any, or in the absence of such specification, or when the duty and level of performance is implied by law, to deliver a product reasonably suited for the purposes for which the product was intended. . . or to deliver services performed in a good and workmanlike manner.
The UCC is inapplicable to workmanship, however, because real property sellers are typically not merchants and are not dealing in the sale of goods. Borrowing from the UCC’s implied warranty of fitness for a particular purpose, and massaging it into the construction context, a cause of action for breach of the implied warranty to construct in a good and workmanlike manner should contain the following elements:
• The builder sold its construction materials and workmanship.
• The builder had reason to know the particular purpose for which the construction
materials and workmanship are required.
• The buyer relied upon the builder’s skill or judgment to perform the construction contract in a workmanlike manner.
• The workmanship was defective and/or not suitable for the particular purpose.
• The buyer was damaged by the builder’s failure to perform the construction contract in a workmanlike manner.
The implied duty to perform the construction contract in a workmanlike manner has been applied to the installation of building materials (e.g., window installation), but not to the construction materials themselves. Thus, Lochrane does not hold that the implied warranty to construct in a good and workmanlike manner includes an implied promise that any products the contractor used will be defect-free.
Implied Warranty of Habitability
The implied warranty of habitability concerns whether a newly constructed residence serves its inhabitants. Quoting an Illinois appellate court, the First District Court of Appeal observed that “[t]he implied warranty of habitability is a judicial innovation which evolved, as a matter of public policy, to protect purchasers of new houses upon discovery of latent defects in their homes.” In Putnam v. Roudebush, 352 So. 2d 908, 910 (Fla. 2d DCA 1977), the Second District Court of Appeal illustrated the concept of the implied warranty of habitability as being whether the building was “reasonably fit for the ordinary or general purpose intended, viz., as living quarters. A breach thereof, therefore, would be that it is not so fit; and the test of the breach is an objective one, i.e., whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality.”
The court also stated that the “personal satisfaction” test of an inhabitant is not enough. A buyer must establish that the premises is uninhabitable based on a “reasonable person” analysis — not his or her hypersensitivity. Elements for a cause of action for breach of the implied warranty of habitability appear to consist of the following under Florida law:
• The builder sold a newly constructed residence directly to plaintiff.
• The buyer took possession of the residence.
• At the time of sale, latent defects caused a failure of residence to meet ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality.
• The buyer was damaged by the builder’s failure to provide habitable premises.
Notably, Florida law holds that the implied warranty of habitability includes not only the house, but the house and lot when they are sold as a package to the original purchaser. It is also important to note that the implied warranty of habitability can be disclaimed. In Florida, parties may exclude items from the implied warranty of habitability as long as the disclaimers are in writing, bold and conspicuous, and specific to implied warranties. Moreover, such disclaimers must be clear and unambiguous and clearly reflects the parties’ expectations as to what items are not warranted — general disclaimers will not suffice.
Florida courts have not expressly stated whether, and if so, to what extent, it is incumbent upon a damaged home buyer to provide the warrantor with some type of notice before filing suit. It appears a wise idea, however, for home buyers to consult their contract(s) with the builder and comply with any applicable notice requirements therein.
Warranty Periods
Part and parcel of a cause of action for breach of warranty is the ability to ascertain the applicable warranty period at issue. However, the meaning of the term “warranty period” is not clearly defined in Florida law. The Virginia Supreme Court in Harbour Gate Owners’ Association, Inc. v. Berg, 348 S.E.2d 252, 257 (Va. 1986), discussed the meaning of a warranty period, stating that it is not a limitation governing the assertion of a right of action, like the statute of limitations, but “rather, it defines the period within which a cause of action for breach of warranty may accrue.” The court pointed out that the warranty period and the statute of limitations period may accrue at the same time, but will not necessarily do so; the two-year warranty period at issue in that case “circumscribe[d] the interval of time within which the warranty exist[ed].” The court noted that if a breach occurred before the two-year warranty period expired, a cause of action would then accrue. Although the definition of a warranty period is not as fully articulated in Florida case law, it appears that Florida courts take a similar approach, finding that once a warranty period has expired, additional warranty claims are outside the period of coverage.
It is important to distinguish between a warranty period and correction or call back period. A correction or call back period essentially gives the warrantor the right of first refusal to be the one to fix the faulty condition. For example, the American Institute of Architects’ AIA 201-2007 General Conditions of the Contract for Construction, a model construction contract widely used in the industry, contains a provision for a one-year period for the contractor to correct work found to be not in accordance with contract documents. Under that provision, the contractor is to correct the work within a reasonable time during the correction period after receipt of notice from the owner or architect. Otherwise, the owner may correct such deficiencies itself, without prejudice to other remedies it may have. On the other hand, that provision also states that if the owner fails to give the contractor notice of the nonconforming work and the opportunity to make the correction, the owner waives not only the right to require correction by the contractor, but also the right to make a breach of warranty claim. The call back provision is in addition to the contractor’s warranty, which is stated in a different section of the general conditions.
Florida law is not clear on whether, when otherwise unspecified by terms of a statute or contract, warranty obligations either impute the warrantor with the obligation to come back and make the repairs or to reimburse the owner for his costs in undertaking the repairs. Well-drafted express warranties can address the notice requirements and call-back procedures for warranty work, which is an issue that construction practitioners should broach with their clients, prospectively and proactively.
Statute of Limitations and Statute of Repose
The statute of limitations for breach of warranty claims “founded upon the design, planning, or construction of an improvement to real property” is four years. Timing to initiate a cause of action involving latent construction defects “runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.” The commencement of a construction defect case (irrespective of whether it involves patent or latent defects), however, cannot exceed the statute of repose, the timing of whichever event is latest:
Ten years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer.59
Even in the event that repairs are undertaken to fix a defective condition, such actions will not toll the statute of limitations period when the owner knows that an obvious problem still exists. Knowledge of a defective condition meets the statutory discovery requirement and starts the clock running.
The statute of limitations and the warranty period are altogether different constraints. A warranty period could pointlessly exceed the statute of limitations period — but it will not extend the limitations period. Consider the case of Dubin v. Dow Corning Corp., 478 So. 2d 71, 73 (Fla. 2d DCA 1985), which involved a situation where the roof installed on a new building came with a five-year warranty and noticeably leaked immediately after closing. Ironically, under Florida’s statute of limitations, the owner had only four years to bring suit. Further, the court noted that Florida Supreme Court previously rejected a “continuing obligation” theory and held fast to the proposition that the limitation period on warranties begins when the contract is breached (i.e., when the defect is or should be discovered).63 In the case of a leaky roof, Florida courts have held that the limitations period begins to run when the owner discovers the first leak. Judge Grimes, concurring in part and dissenting in part to that opinion, summed up the net effect of the majority’s holding, stating “[t]o adopt the majority’s view means that regardless of the duration of the specified period of warranty, the period is subject to shortening if the defect first appears more than four years before the expiration of the period.”65
Practitioners should be aware of whether there are any statutory considerations that could impact the applicable limitations period of a particular construction case. For example, F.S. §718.124 tolls the limitations periods for condominium associations or cooperatives until the association passes from developer to unit owner control, although suits must still be filed within the general time limits set out in Ch. 95.
Conclusion
Florida construction law practitioners may be frustrated with the lack of guidance in Florida statutory and case law for the practical application of construction warranties. Accordingly, attorneys have their work cut out for them when pleading or defending warranty causes of action. A helpful assessment mechanism in construction defect disputes is for construction practitioners to analyze initially whether any statutes or express or implied warranties apply to particular construction projects and whether a damaged owner (or contractor) invoked or should have invoked any warranties or perceived warranties. Upon identifying applicable warranties, it is important to examine any applicable exceptions or disclaimers thereto and determine the warranty periods and limitation periods. Hopefully, with the advent of construction law and practice increasingly focusing on practical measures in the industry to streamline dispute resolution and/or avoid unnecessary litigation, warranty law will continue to evolve (through case law and/or legislation) to make it easier for the industry to identify and utilize available warranties.
1 W. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 800-82 (1966).
2 Philip L. Bruner et al., Bruner & O’Connor on Construction Law §9:4 (2002) (quoting, Quinn’s Uniform Commercial Code Commentary and Law Digest, vol. 1 ¶ 2-313[A][2] (2d ed. 1991)).
3 Id. at §9:1.
4 Id. at n.2 (quoting, Prosser and Keeton on the Law of Torts §95 at 652, 653 (3d ed.)).
5 Id. at §9:1.
6 Id.
7 Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 102 (Fla. 4th D.C.A. 1969).
8 Id. at 104.
9 Id. (quoting, 77 C.J.S. Sales §301 at 1115 and §309 at 1135; 46 Am. Jur. Sales, §299 at 482).
10 Id. at 104 (citations omitted).
11 K/F Dev. & Inv. Corp. v. Williamson Crane & Dozer Corp., 367 So. 2d 1078, 1079 (Fla. 3d D.C.A. 1979) (holding that because the 10-year warranty on the roof was conferred at closing, not at the time of the purchase and sale agreement, it could not have been an inducement for the purchaser to enter into the transaction).
12 Whitehead v. Rizon East Ass’n, 425 So. 2d 627, 629 (Fla. 4th D.C.A. 1983) (“We agree that privity is essential to the claims based on warranty; and it is uncontradicted that there is not privity between these parties.”). See also Intergraph Corp. v. Stearman, 555 So. 2d 1282, 1283 (Fla. 2d D.C.A. 1990) (“Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties.”).
13 Wood-Hopkins Contracting Co., 235 So. 2d 548, 550 (Fla. 1st D.C.A. 1970) (emphasis added).
14 Id. at 550, 552.
15 New Nautical Coatings, Inc., 731 So. 2d 145, 146-47 (Fla. 4th D.C.A. 1999).
16 Id. at 147.
17 Elizabeth N. v. Riverside Group, Inc., 585 So. 2d 376, 378-79 (Fla. 1st D.C.A. 1991).
18 David v. B&J Holding Corp., 349 So. 2d 676, 678 (Fla. 3d D.C.A. 1977) (citing, 28 Fla. Jur. Sales §134 (1968)).
19 Fla. Stat. §§672.314, 672.315 (2008).
20 Fla. Stat. §718.203(1) (2008).
21 Fla. Stat. §718.203(2) (2008).
22 Fla. Stat. §718.618 (2008).
23 15 U.S.C. §2310.
24 Mesa v. BMW of North Am., LLC, 904 So. 2d 450, 453 (Fla. 3d D.C.A. 2005).
25 Davis v. Southern Energy Homes, Inc., 305 F.3d 1268 (11th Cir. 2002) (involving a suit by purchasers of a manufactured home against the manufacturer); Cunningham v. Fleetwood Homes of Ga., Inc., 253 F.3d 611 (11th Cir. 2001) (involving a suit by purchasers of a mobile home against the seller and manufacturer).
26 Md. Code Ann., Real Prop. §10-203(a) (2008).
27 See David, 349 So. 2d at 677-78.
28 Schmeck v. Sea Oats Condo. Assoc., Inc., 441 So. 2d 1092, 1097 (Fla. 5th D.C.A. 1983).
29 See David, 349 So. 2d at 677-78.
30 Id at 677.
31 Id. at 678.
32 Id.
33 Drexel Props., Inc. v. Bay Colony Club Condo., Inc., 406 So. 2d 515, 519 (Fla. 4th D.C.A. 1981), disapproved of on other grounds by Casa Clara Condo. Ass’n, Inc. v. Charley Toppino and Sons, Inc., 620 So. 2d 1244 (Fla. 1993) (“[A]s to original purchasers, there exists an implied warranty of substantial compliance with plans and specifications…. This does not mean that the developer must deliver a perfect house.”).
34 B&J Holding Corp. v. Weiss, 353 So. 2d 141, 143 (Fla. 3d D.C.A. 1977) (discussing the deficiencies which included sound boards being omitted from party walls, some moisture proofing omitted, the incorrect voltage system installed and the hot water heaters on the roof not being properly housed and stating that “the measure of damages is the cost of correcting the defects or completing the omissions”).
35 Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv. Fund, Ltd., 552 So. 2d 228, 232 (Fla. 5th D.C.A. 1989).
36 Gable v. Silver, 258 So. 2d 11, 17-18 (Fla. 4th D.C.A. 1972), aff’d, 264 So. 2d 418 (Fla. 1972).
37 See Fla. Stat. §672.315 (2008).
38 Lonnie D. Adams Bldg. Contractor, Inc. v. O’Connor, 714 So. 2d 1178, 1179 (Fla. 2d D.C.A. 1998).
39 Id.
40 Conklin v. Hurley, 428 So. 2d 654, 656 (Fla. 1983) (stating that with the Gable decision, Florida joined the states that recognized as an exception to the doctrine of caveat emptor in real estate sales cases that “an implied warranty of habitability or merchantability” applied to the sale of new residences).
41 Elizabeth N, 585 So. 2d at 379.
42 Putnam v. Roudebush, 352 So. 2d 908, 910 (Fla. 2d D.C.A. 1977).
43 Id.
44 See Hesson v. Walmsley Constr. Co., 422 So. 2d 943, 945 (Fla. 2d D.C.A. 1982) (stating that “the implied warranty extends only to conditions in existence at the time of sale, as it would be unfair to hold a builder-vendor liable for defects caused by conditions occurring subsequent to sale, e.g., natural catastrophes…”).
45 See Conley v. Coral Ridge Props., Inc., 396 So. 2d 1220, 1222 (Fla. 4th D.C.A. 1981) (suggesting that a prima facie case for breach of warranty could not be established if the alleged defects were patent and obvious).
46 Putnam, 352 So. 2d at 910.
47 Hesson, 422 So. 2d at 945.
48 McGuire v. Ryland Group, Inc., 497 F. Supp. 2d 1356, 1360 (M.D. Fla. 2007) (citing Hesson for the Second District Court of Appeal’s statement that “we know of no reason why parties to a contract cannot mutually agree on the reallocation of risks. . . if the disclaimer is in clear and unambiguous language and clearly reflects both parties’ expectations as to what items are not warranted”).
49 Id.
50 See, e.g., David, 349 So. 2d at 677 (noting that the plaintiffs made timely written complaints to the builder about the construction defects, although they sued on an implied warranty theory, which the appellate court found to be meritorious).
51 Harbour Gate, 348 S.E.2d 252, 257 (Va. 1986).
52 Id.
53 Id.
54 See, e.g., Royal Prof’l Builders, Inc. v. Roggin, 853 So. 2d 520, 523 (Fla. 4th D.C.A. 2003) (finding that the plaintiff’s claims were either excluded by the limited warranty or outside the one-year period of coverage).
55 AIA A201-1997 General Conditions of the Contract for Construction, §12.2.2.1.
56 Id. at §3.5 (Warranty).
57 Fla. Stat. §95.11(3)(c) (2008).
58 Id.
59 Id.
60 Kelley v. School Bd. of Seminole County, 435 So. 2d 804, 806-07 (Fla. 1983).
61 Id. at 807; Fla. Stat. §95.11(3)(c) (2008).
62 Dubin, 478 So. 2d 71, 73 (Fla. 2d D.C.A. 1985).
63 Id. (citing Kelley).
64 Id.
65 Id. at 74 (Grimes, J., concurring in part and dissenting in part).
66 Fla. Stat. §718.124 (2008); Charley Toppino & Sons., Inc. v. Seawatch at Marathon Condo. Ass’n, Inc., 658 So. 2d 922, 925 (Fla. 1994).
Laura B. Coln is an associate attorney of Moye, O’Brien, O’Rourke, Pickert & Martin, LLP, in Maitland. She received her Bachelor of Arts from the University of Central Florida and her Juris Doctor from Stetson University College of Law, where she was an editor of Stetson Law Review. Prior to practicing construction law, Ms. Coln was a senior staff attorney to Florida Supreme Court Justice Harry Lee Anstead.
