Construction Insurance Claim Warranty of Habitability

Implied Warranty of Habitability

Abby Caldwell
June 21, 2013

Home builders and buyers in Washington should be aware of the changing perspective of the courts as to one another’s rights and obligations.

For a buyer of older construction, the principle of “buyer beware” is still very much alive.  On the other hand, buyers of new construction have been given increasing latitude to bring claims based upon the implied warranty of habitability.

Both claims rely heavily on the facts of each particular matter, as opposed to the legal concepts upon which they were derived.

I. Buyer Beware and Douglas v. Visser

The responsibility of a buyer to discover and inquire became more defined in Douglas v. Visser, 173 Wn. App. 823, 295 P.3d 800 (2013). The seller knowingly covered up defects and provided vague responses on the seller disclosure statement. Nonetheless, a pre-sale inspection notified the buyers of rot at the home. The Court placed responsibility for further inquiry on the buyers alone and dismissed their claims. The facts will be key in each situation: sellers should not simply rely on the “buyer beware”, but must also show that the buyer failed in its affirmative duty to inquire.

II. The Implied Warranty of Habitability Continues to Extend the Definition of Habitability

On the other end of the spectrum is the builder-vendor’s responsibility to purchasers of new construction. The implied warranty of habitability in Washington began with the basic, common-sense statement that a builder-vendor impliedly warrants to the first purchaser of a new house that it has a secure foundation and is structurally safe.

Early case law strictly interpreted this warranty, and a breach was found only when there were egregious defects that profoundly compromised the livability of the property. Mere defects in workmanship were insufficient to support a habitability claim.

However, over time the courts’ interpretation of habitability has become increasing liberal. Recovery has recently been afforded due to alleged building code violations, and is now generally permitted whenever the defects in a dwelling render it uninhabitable or pose an actual or potential safety hazard to its occupants regardless of the property’s livability. , .

In short, the liability of sellers, and the potential risk to buyers, continues to evolve. Care should be taken to be aware of which set of rules applies to each particular transaction.

Klos v. Gockel, 87 Wn.2d 567, 554 P.2d 1349 (1976) citing House v. Thornton, 76 Wn.2d 428, 436, 457 P.2d 199 (1969).

Stuart v. Coldwell, 109 Wn.2d 406, 416, 745 P.2d 1284 (1987).

Atherton Condo. Assn v. Blume Dev. Co., 115 Wn.2d 506, 520, 799 P.2d 250 (1990).

Lian v. Stalick, 106 Wn. App. 811, 817 – 818, 25 P.3d 467 (2001).

The content of this article is intended to provide general information and as a guide to the subject matter only. Please contact an Advise & Consult, Inc. expert for advice on your specific circumstances.


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