§22.4 Warranty

• Jurisdiction: Washington

§22.4 WARRANTY

This section discusses express and implied warranties in construction projects.

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(1) Express warranty

Express warranties are promises contained in the contract or other sales literature, including marketing or sales brochures, as to the workmanship and/or materials to be used in construction, upon which the owner or residential buyer relies. Atherton Condo. Apt.-Owners Ass'n v. Blume Dev. Co., 115 Wn.2d 506, 799 P.2d 250 (1990) (citing Jackson v. Buesgens, 290 Minn. 78, 81, 186 N.W.2d 184 (1971)); see also Annotation, Liability of builder-vendor or other vendor of new dwelling for loss, injury, or damage occasioned by defective condition thereof, 25 A.L.R.3d 383 (1969). An express warranty also may arise from an oral statement given about construction of a residence when the builder makes a verbal statement of fact about the workmanship and/or materials used in construction before the sale and upon which the buyer relies. See Atherton, 115 Wn.2d at 535-36.

Practice Tip: When representing a buyer, make sure discovery endeavors to find all marketing materials for the project. Have your client review the materials to determine which were relied upon to induce them to purchase the home.

Special care should be taken with drafting express warranty provisions to include only those items intended for the owner/buyer to rely upon. Key provisions can include

(1)	a statement that the work be of good quality, free from faults and defaults, and in conformance with the contract documents;
(2)	a specified time period generally one year from the date of substantial completion or any longer period required by a specific warranty; and
(3)	a statement that the contractor shall promptly correct the work after receipt of written notice from the owner.

The following are examples of contract warranty clauses:

Correction of Defective Work. Design-Builder agrees to correct any work that is found to not be in conformance with the Contract Documents, including the part of the Work subject to Section X hereof, within a period of one (1) year from the date of Substantial Completion of the Work or any portion of the Work, or within such longer period to the extent required by any specific warranty included in the Contract Documents.

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Warranty Obligations. In accordance with Article X of the General Conditions and this section, the Contractor shall maintain such warranty for a period of one (1) year from the date of Substantial Completion of the project not withstanding more extensive warranty requirements specified for certain elements and products used in the Work, in which case the longer warranty requirements shall apply.

Warranty. The Contractor warrants to the Owner that materials and equipment furnished under the Contract Documents will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted by law or otherwise, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.

In agreements between contractors and subcontractors, the terms of any warranty should be explicit. No common-law warranties exist between a contractor and subcontractor. The following are examples of subcontractor warranty clauses:

Subcontractor Warranties. Subcontractor guarantees and warrants that all work and materials supplied by Subcontractor and its lower-tier subcontractors, will be as specified and supplied in accordance with the Contract documents. Upon notification by Contractor, Subcontractor will, at its own expense, service, repair, and correct any defective or unsatisfactory work, equipment, or material on the project, for a period of one year following substantial completion of the entire project. [33 David K. DeWolf & Matthew C. Albrecht, Washington Practice, Washington Construction Law Manual §10:8 (2017-2018 ed.).]

Subcontractor Obligations. It is agreed that Subcontractor will assume toward Contractor all obligations and responsibilities which Contractor has assumed toward Owner under the Main Contract to the extent of the Work herein subcontracted, and

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Subcontractor shall be entitled to all privileges and protections granted Contractor by Owner under the Main Contract. Subcontractor warrants and guarantees the Work covered by this Subcontract and agrees to make good, at its own expense, any defect in materials or workmanship which may occur or develop prior to the Contractor's release from responsibility to the Owner therefor.

(2) Express and implied warranties: condominiums

Washington's Condominium Act, Chapter 64.34 RCW, imposes both express and implied warranties on declarants and dealers of units for the protection of purchasers. Express warranties consist of the following:

(1)	Any written affirmation of fact or promise concerning the unit and rights appurtenant to the unit is an express warranty that the unit and related rights will conform to the affirmation or promise. RCW 64.34.443(1)(a).
(2)	Any model or written description of the physical characteristics of the condominium or the real property, including plans, specifications, and surveys, is an express warranty that the condominium and real property will conform to the model or description. RCW 64.34.443(1)(b), (c).
(3)	Any written provision permitting a specified use is an express warranty that the use is lawful. RCW 64.34.443(1)(d).

Any express warranty is created only if the representation "is contained in a public offering statement or made in writing signed by the declarant or declarant's agent...." RCW 64.34.443(2).

The Condominium Act imposes implied warranties of suitability and quality in the absence of any written affirmation or promise. Marina Condo. Homeowner's Ass'n v. Stratford at Marina, LLC, 161 Wn. App. 249, 256, 254 P.3d 827 (2011). The implied warranty of suitability is a warranty that the unit and common elements are suitable for ordinary uses. RCW 64.34.445(2). The implied warranty of quality is a warranty that any improvements are

(a) Free from defective materials;

(b) Constructed in accordance with sound engineering and construction standards;

(c) Constructed in a workmanlike manner; and

(d) Constructed in compliance with all laws then applicable to such improvements.

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RCW 64.34.445(2)(a)-(d). These implied warranties transfer to subsequent purchasers of units. RCW 64.34.445(6). To prove a breach of these implied warranties, a plaintiff must show more than a technical defect, but the plaintiff is not required to show that the defect renders the unit uninhabitable. RCW 64.34.445(7). Instead, the plaintiff must prove that the defect has an adverse effect on the plaintiff, which is defined as being "significant to a reasonable person." Id.

For nonresidential units, implied warranties of quality may be excluded or modified by written agreement or by a general disclaimer. RCW 64.34.450(1)(a), (b). For residential units, a declarant or dealer may only disclaim specified defects and only in a writing that is "bold faced, capitalized, underlined, or otherwise set out from surrounding material so as to be conspicuous, and separately signed by the purchaser, for a specified defect...