Implied warranty of habitability enforced despite disclaimer

By Eric S. Newman

A home builder can be liable for breach of the implied warranty of habitability even if the builder contractually disclaimed such liability, the Washington Court of Appeals has held.

In Burbo v. Harley C. Douglass, Inc., no. 22720-1-III (Feb. 8, 2005), James Burbo bought a newly built home from Douglass, the builder. As a condition of closing the sale, Douglass required Burbo to sign a contractor’s limited-warranty agreement. The agreement disclaimed liability for implied warranties, including habitability. It provided that even where the builder was liable for defects, the buyer’s only remedy was that the builder would repair the defect.

Burbo almost immediately experienced problems with the home, and Burbo reported them to Douglass. The foundation cracked, and Douglass made inadequate repairs. The driveway cracked, and Douglass refused to repair it. The roof leaked, and Douglass applied a temporary fix that he told Burbo was permanent. Snow came in through a defective seal around a skylight, and Douglass’s repairs of these conditions were ineffectual or made matters worse. The front door did not fit. Burbo’s engineering experts concluded that Douglass had violated the building code in several respects, including the roof installation, a structural column support, and other problems.

Burbo sued Douglass for breach of the implied warranty of habitability, fraudulent concealment, and violation of the Consumer Protection Act. Douglass moved for summary judgment, arguing that Burbo claimed at most simply poor workmanship, which does not render the house uninhabitable, and that the waiver of the implied warranty defeated Burbo’s claims. The trial court granted the motion and dismissed the action. Burbo appealed.