The Implied Warranty Of Habitability: When All Else Fails
It shines, it sparkles, and no one has used the toilet before! It’s new construction! Purchasing a newly constructed home certainly has curb appeal. Everything is new and fresh and oftentimes, the Buyer will have an opportunity to customize and put their personal touches on the nuts and bolts of the home.
Typically, a developer will offer a one (1) year limited warranty on the home following the closing. The warranty will cover items such as the structural soundness of the property, the mechanics and systems and other built in fixtures. But what happens when you discover a defect on day 366?
In Massachusetts, the implied warranty of habitability automatically attaches to the sale of new homes and cannot be waived or disclaimed by either the Buyer or the Seller and the Buyer has three years to make a claim for breach. In Albrecht v. Clifford, the seminal case on this topic, the Court held that:
“Its purpose is to protect a purchaser of a new home from latent defects that create substantial questions of safety and habitability. While the scope of this warranty must be left largely to case-by-case determination, a home that is unsafe because it deviates from fundamental aspects of the applicable building codes, or is structurally unsound, or fails to keep out the elements because of defects of construction, would breach the implied warranty we adopt today.” 767 N.E.2d 42, 47 (Mass. 2002).
This warranty will always apply even if the Builder does not provide one which is very advantageous to the purchaser of new construction. However:
“[T]his implied warranty does not make the builder an insurer against any and all defects in a home, impose on the builder an obligation to deliver a perfect house or protect against mere defects in workmanship, minor or procedural violations of the applicable building codes, or defects that are trivial or aesthetic. Its adoption is not intended to affect a Buyer’s ability to inspect a house before purchase, to condition the purchase on a satisfactory inspection result, or to negotiate additional express warranties.” Id.
The implied warranty of habitability should be viewed as a solid protection for those purchasing new construction but will not replace a thorough home inspection and due diligence on the part of the Buyer.
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