Better Late Than Never - Implied Warranties of Workmanlike Manner and Habitability Now Available in Utah

Publication year2010
CitationVol. 23 No. 2 Pg. 30
Utah Bar Journal
Volume 23.

Vol. 23, No. 2, 30. Better Late than Never - Implied Warranties of Workmanlike Manner and Habitability Now Available in Utah

Utah Bar Journal
Volume 23 No. 2
March/April 2010

Utah Law Developments

Better Late than Never - Implied Warranties of Workmanlike Manner and Habitability Now Available in Utah

by Timothy R. Pack

I must make a confession: Sometimes I am dead wrong. I have misstated a rule or legal principle to a client before, insisted to my wife that pizza is best eaten cold, and lectured friends that this year was Greg Ostertag's year. And sometimes, just sometimes, after I realize my mistake and the bone-headedness of my statements, I admit that I was wrong and see the good sense and reasonableness in the right answer. Although I have not been practicing law for very long, I have found, surprisingly, that it is hard to get lawyers to admit that they were wrong. So when the Utah Supreme Court admits that it was wrong, and goes so far as to publicly state it, and in writing no less, I take notice and commend the court.

This article discusses the Utah Supreme Court's opinion in Davencourt v. Davencourt, 2009 UT 65, 221 P.3d 234 only as it relates to the implied warranties in the sale of new residences. This issue only comprises a small part of the Davencourt opinion as it covers many issues with an insightful discussion on the economic loss rule.

It had been well established that Utah Courts do not recognize an implied warranty of habitability nor an implied warranty of workmanlike manner in the context of new residential sales. However, the Utah Supreme Court's recent opinion in Davencourt said sayonara to the anachronistic doctrine of caveat emptor. Historically, the Utah Supreme Court has held tight to the doctrine of caveat emptor which was so very chic in the first half of the twentieth century. See id. andpara; 51. "'Underlying this almost universal doctrine was the theory of equal bargaining power in contract and the ability and opportunity to inspect.'" id. andpara; 51 (quoting 12 Thompson on Real Property andsect; 99.06(a)(2) (David A. Thomas ed., 2d Thomas ed. 2008)). Even into the 1990s the Utah Supreme Court reiterated this principle for upholding the doctrine of caveat emptor:

The purchaser has the right to inspect the house before the purchase as thoroughly as that individual desires, and to condition purchase of the house upon a satisfactory inspection report. Further, if there are particular concerns about a home, the parties can contract for an express written warranty from the seller. Finally, if there are material latent defects of which the seller was aware, the buyer may have a cause of action in fraud.

Am. Towers Owners Ass'n v. CCi Mechanical inc., 930 P.2d 1182, 1193 (Utah 1996) (quoting Maack v. Res. Design and Constr., inc., 875 P.2d 570, 582-83 (Utah Ct. App. 1994))

However, every state in the union, except Utah, has established, by common law or statute, the implied warranty of workmanlike manner or the implied warranty of habitability in new residential home sales. See Davencourt, 2009 UT 65, ¶ 52.

Forty-five states have adopted an implied warranty in some form and Hawaii appears to have done so in dicta. Forty-three states provide for an implied warranty of habitability. Besides the four states that do not recognize any implied warranty, only Delaware, Nebraska, and Ohio expressly reject the implied warranty of habitability; yet those three states each provide for an implied warranty of workmanlike manner...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT