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APPLICABLE LAWConstruction defects implicate both federal and state law,though typically these claims are litigated (or arbitrated) under state law.While many claims and defenses are created by statute, decisional case lawplays an integral role in not only defining the scope and application of theseclaims and defenses, but sometimes in limiting them. Conversely, as has beenseen with common law warranties and design professional liability, statutessometimes limit or expressly overrule decisional law..

EXPRESS WARRANTY CLAIMSExpress warranties are, as the name suggests, created by expresscontractual obligations, and their scope is limited by their terms.1Express warranties do not always require words to be created, but can derivefrom the conduct of the seller such as where the seller shows the buyer ablueprint or other description of the goods sold.2 UnderFlorida law, written warranties are treated like a contract between a buyer andseller, and may therefore limit or foreclose available remedies.3For instance, developers may properly disclaim express warranties in the saleof condominiums.4On the other hand, a contractor CLAIMSExpress warranties are, as the name suggests, created by expresscontractual obligations, and their scope is limited by their terms.1Express warranties do not always require words to be created, but can derivefrom the conduct of the seller such as where the seller shows the buyer ablueprint or other description of the goods sold.2 UnderFlorida law, written warranties are treated like a contract between a buyer andseller, and may therefore limit or foreclose available remedies.

3For instance, developers may properly disclaim express warranties in the saleof condominiums.4On the other hand, a contractor routinely warrants that its work will be free from defectsand will conform to the requirements of the “Contract Documents.” But suchwarranties exclude damage or defects caused from the owner by abuse, impropermaintenance, or operation, or from normal wear and tear.5 The contractorgenerally also provides a one year warranty against defects appearing inworkmanship or materials during the warranty period.

Such warranty requiresthat the owner provide notice of the defect during the warranty period andprovide a reasonable opportunity to make repairs. Failure to provide notice canresult in the owner’s waiver of the right to require the contractor to correctthe deficiency or to make a claim for breach of warranty. Where the contractoris timely notified and fails or refuses to make repairs, the owner may then doso and pursue recovery for the costs under a breach of warranty claim.

6With respect to the sale of “goods” (materials) underFlorida’s Uniform Commercial Code (“UCC”),9any affirmation of fact or promise made by the seller to the buyer that relatesto the warranties in a subcontract agreement that run in favor of the contractoreither directly or by a “flow-down” provision that binds the subcontractor tothe same extent that the contractor is bound to the owner under the primecontract. The contractor’s warranty to correct defects in the work does notgenerally cover defects in design where the owner has hired an architect todesign the improvements.7Under these circumstances, the owner impliedly warrants that the contractor willbe able to build what is shown in the plans and specifications and that thecompleted improvements will be fit for their intended purposes.

8With respect to the sale of “goods” (materials) underFlorida’s Uniform Commercial Code (“UCC”),9any affirmation of fact or promise made by the seller to the buyer that relatesto the goods and becomes part of the basis of the bargain creates an expresswarranty that the goods shall conform to the affirmation or promise. Further,any description of the goods that is made part of the basis of the bargaincreates an express warranty that the goods shall conform to the description.And any sample or model which is made part of the basis of the bargain createsan express warranty that the whole of the goods shall conform to the sample ormodel.10Formal words such as “warrant” or “guarantee” or that the seller has a”specific intention” to make a warranty are not necessary to create an expresswarranty; however, an affirmation merely of the value of the goods or astatement purporting to be merely the seller’s opinion or commendation of thegoods does not create a warranty.11subcontractor as part of a project close-out, an owner is an expressintended beneficiary and may recover under the warranty. However, suchwarranties typically have exclusions and are subject to certain conditionsbeing met. For instance, such warranties commonly do not cover damage caused byexcessive wear and tear, abuse, or modifications to the product, and an ownermust perform routine maintenance.

Failure to comply with these conditions mayvoid an otherwise valid warranty.13 1SeeCipollonev. Liggett Group, Inc., 505 U.S. 504, 525(1992) (“A manufacturer’sliability for breach of an express warranty derives from, and is measured by,the terms of that warranty.

“).2Milesv. Kavanaugh, 350 So. 2d 1090(Fla.

3d DCA 1977).

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