Our office handles construction defects, townhouse and condominium construction problems, and consumer fraud construction claims. This includes construction claims and litigation, and construction defects as cracked foundations, inadequate ventilation, heating or air conditioning, leaking roofs, defective windows. Here is a summary of the different laws which can apply to a construction defects claim.
A. Breach of Implied Warranty of Merchantability
For the sale of goods, the law creates or implies a warranty that goods are reasonably fit. That means they should be of average or decent quality, not perfect, but not substantially below average either.
1. Does the Implied Warranty Apply to Construction Defects
Implied warranties apply to sale of goods. If the predominant feature of a transaction is the provision of services, then the warranty does not apply. Most courts have held the implied warranty applies to the sale of new homes.
2. Can the Warranty be Disclaimed.
A prominent disclaimer such as this sale is AS IS may be sufficient to disclaim or eliminate the implied warranty. Contrariwise, small print on the back of a form is likely insufficient.
B. Express Warranty in Construction Defect Claims
Typically an express warranty is a guarantee over a certain period of years. If the seller fails to repair or comply there is a breach. Additionally, an express warranty can be created where there are specific representations in brochures or otherwise which become part of what the law calls the basis of the bargain.
C. Consumer Fraud Construction Claims
Misrepresentations can create liability under the Consumer Fraud Act. For home construction, there are specific regulations governing home repair.
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