Construction Forms Series

 

Construction warranties are so frequently expected by owners and general contractors, as to be essentially required. For this reason alone, it is good business practice to offer them on your construction projects.

But there is another reason. After work is completed, you should do whatever is legally necessary to prevent further claims. Isn’t that the whole point? Who doesn’t want to be able to walk away from a finished project without having to look behind your shoulder? And not having to file a mechanics lien? There is certainly no guarantee you will not be called back or sued for damages, but you can certainly draft this construction form in such a way as to help eliminate that prospect. NationalLienLaw is quite proud of their warranty agreement, as it has been drafted by an experienced construction attorney so that the following protections are offered:

    • Waives all implied warranties of merchantability, fitness for a particular purpose, habitability, and UCC implied warranties.
    • The warranty is void unless the owner gives the contractor access to the property and the right to fix the problem before hiring someone else at a higher cost.
    • The work is not guaranteed to be perfect, but only to be reasonable—defined as workmanship within industry tolerances.  Gives you a better chance of getting the full value on a mechanics lien.
    • There is no liability for defective materials, equipment, or appliances—the only remedy is to go against the warranty of the manufacturer or supplier.
    • The warranty is void unless notification is given in writing, which states the particulars of the problem.
    • Limits the amount of possible damages for defective work to 150% of the cost to repair. Since it is common today to sue for thousands of dollars above the cost to repair for consequential damages, this will help limit the exposure.
    • Limits the time to bring a lawsuit (in which you would counter with a mechanic’s lien foreclosure cross-complaint) the amount of damages for defective workmanship or materials to the lower cost to repair or replace under warranty theory, as opposed to the higher tort or breach of contract theory. This is a significant protection if approved by a judge.
    • Requires the owner to notify the contractor within 60 days of knowledge of a problem. To be covered, the physical signs of the problem must be observable and have started to cause damage before the one-year period expires.
    • It is the contractor’s option to either repair or replace.
    • Work is to be done within a reasonable period of time during normal working hours, which can be extended based on weather, availability of materials, etc.
    • The contractor is required to repair or replace only the specific part which is defective, and not other non-defective components or the surrounding area.
    • Makes sure the one year warranty starts as early as possible. In this case it would be the earlier of the acceptance through the building inspection department or occupancy of the owner. Eliminates the longer periods of when the project has been “accepted” or fully paid, since many times this is too vague, drags out the warranty, or even makes it an indefinite period.
    • A responsible adult must be present to have authority and accept the corrective work.
    • If the owner is required to purchase and install more valuable materials than originally provided in the contract in order to correct any defects, the owner may not recover the extra value of such better material.
    • Important: Waives all damages other than the obligation to repair or replace, including: incidental, indirect, special, consequential, secondary, or punitive damages; loss of use; diminution in value; rental costs; moving costs; delay in occupancy; construction, mortgage, loan, or line of credit interest charges; mortgage interest rate increases; lost profits or income; medical costs; damages for mental distress, aggravation, personal injury; or pain and suffering.
    • There is no liability for a defective products or materials, even if the contractor gives the owner or general contractor a copy of a brochure or product literature.
    • If the owner or architect specifies a particular material, they will be responsible for any such product defects.
    • There will be no liability for latent product defects, namely problems that are not readily observable at the time of installation or initial stages of occupancy.

 

Important exclusions as follows:

    • 1. Damage or defects caused by the failure to maintain any item or keep it in good working order.
    • 2. As a result of unforeseen site conditions occurring beyond contractor’s control.
    • 3. Damage resulting from fire, freezing, storms, electrical malfunction or surge, lightening, earthquake, pest damage, acts of God, or other unforeseen causes or accidents.
    • 4. Damage from alterations, misuse, or abuse by any person; ordinary wear and tear; or problems caused by lack of maintenance.
    • 5. Damage resulting from failure to observe any operation instructions furnished at the time of installation.
    • 6. Any item furnished, installed, modified, altered, or repaired by any other person other than contractor.
    • 7. Any appliance, piece of equipment, material, or other item that is a consumer product under the Magnuson-Moss Warranty Act, 15 U.S. Code, ‘2301 et. seq.
    • 8. The warranty is not valid unless the contract is paid in full.
    • 9. Any loss, injury, or damage attributable to the subsidence or movement of land as a result of landslide, mud flow, flooding, water infiltration or damage, earth sinking or shifting, or expanding or contracting.
    • 10. Bodily injury or property damage relating to pollutants or toxics.
    • 11. Conditions resulting from condensation on, expansion of, or contraction of materials.
    • 12. Problems which arise in an attempt to match existing materials. There
      are limitations inherent in the matching of existing materials such as stucco, drywall, paint, wood, tile, flooring, concrete, and the like. Exact duplication in matching, texture, and color will not be guaranteed. Variations within industry tolerances will be considered acceptable.
    • 13. Pre-existing conditions of the structure or its components.
    • 14. The contractor’s statements of opinion, comments, affirmation of value or functionality, product descriptions, or instruction for use, of the work or materials furnished, shall not be considered a warranty.
    • 15. Problems associated with the owner or its agents (architect or engineer) failing to provide an adequate design, plans, or specifications, or failing to exercise professional care.
    • 16. Delays caused by factors beyond the control of the contractor. The owner warrants that work can be performed as called for by any owner-mandated schedule.
    • 17. Delays due to the unavailability of material. The owner will warrant the commercial availability of any specified single source product.
    • 18. Implied warranties derived from any course of dealing or usage in the trade.
    • 19. If there are plans, specifications, or drawings by design professionals or the owner, those persons impliedly warrant that the resulting structure and its component’s will be suitable for the particular purpose for which they were intended. The same applies to substitute material approved by the owner.
    • 20. The owner agrees to provide contractor, or it’s representative, access to the premises and the first opportunity of repairing or replacing any defective items. If contractor is not given that opportunity, any expenses incurred by another contractor will be at owner’s expense.

Will the courts enforce all these protective provisions and exclusions? There is certainly no guarantee. But if the warranty agreement is agreed upon and signed by the owner, it goes a long way in making such an argument.

The package below includes forms used by general contractors and subcontractors (in “fillable” PDF format so they can be used over and over again), instructions, a ten page law summary, and formatted into a Kit with seven (7) separate forms for one price. This Kit covers the most commonly encountered situations on a construction project including:
  • Acknowledgement of warranty service request.

    $15
    Acknowledges the receipt of the warranty request, and states whether the items will be covered and when the scheduled date of repair will be. View Sample PDF
    Add to cart
  • Construction Warranties Discount Package.

    $95
    All seven (7) forms with instructions and Law Summary, in a Kit format.
    Add to cart
  • No response to warranty request.

    $20
    This form is used if a request is made for warranty service, but there have been repeated and unsuccessful attempts for access or to make contact. This documents the fact that you made reasonable attempts before giving up. View Sample PDF
    Add to cart
  • Request for information.

    $20
    Many times the warranty work has to do with services performed by a subcontractor or materials furnished by a supplier. The contractors does not always have a ready response to needed info and so this form asks for more information from those sources so a definitive answer can be given. View Sample PDF
    Add to cart
  • Response to warranty service request.

    $15
    Describes whether the request will be covered, not covered, or done anyway as a courtesy. Describes when the work will be scheduled, when it has been completed, and any comments. View Sample PDF
    Add to cart
  • Warranty agreement (long).

    $40
    A full version of the warranty, including all the protective provisions. Thoroughly reviewed and drafted by an experienced construction attorney. View Sample PDF
    Add to cart
  • Warranty agreement (simple).

    $30
    A shorter version of the warranty agreement which has less exclusions and is used if the owner objects to the more lengthy agreement. View Sample PDF
    Add to cart
  • Warranty service request.

    $15
    Used by the owner or general contractor to request warranty service. It requires the request to be in writing, with a detailed description of the problems, or the warranty will be voided. View Sample PDF
    Add to cart
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