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Construction Warranties, Waivers and Workmanship

The Supreme Court of Ohio unanimously ruled in a recent case that a builder’s duty to construct a home “in a workmanlike manner using ordinary care is a duty imposed by law”, and that the homebuyer’s right to enforce this legal duty cannot be waived by a homebuyer.

In the case Jones v. Centex Homes, the builder was sued by two homeownersalleging breach of contract, breach of express and implied warranties, negligence, and failure to perform in a workmanlike manner.  The builder’s contract included language where the homebuyer waived all warranties of the builder except the express warranties the builder set forth in its contract.  The Court stated that it does not expect builders to be perfect; however, it believes there is an implied standard of care in which builders are not able to fall below, even if the homebuyer’s waived this right by contract.

Indiana has the New Home Construction Warranty Act which permits builders to include disclaimers of implied warranties in new home construction agreements.  The disclaimer is accomplished by the builder providing certain contractual express warranties and complying with the additional provisions of the Act.

While the Jones v. Centex Homes case is not law in the State of Indiana, it cannot be overlooked that it is an Ohio Supreme Court decision in which the court focused on the “duty” of the builder, rather than the builder’s contractual express warranty.  Thus, the construction industry must be mindful of the potential for other states to follow suit.  Above all, it confirms the necessity for a builder to always utilize methods, materials and subcontractors that meet certain workmanship standards.

For more information concerning this case or construction warranties, contact attorney Shannon Frank, or a member of the firm’s Construction Law Practice Team.