The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

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This article is an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally.

January 23, 2023
Robert A. Henry & Emily R. Parker - Snell & Wilmer Real Estate Litigation Blog

The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed. It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally.

The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied warranty of workmanship and habitability cannot, under any circumstances, be disclaimed or waived.

From a practice perspective, the foregoing is likely all one needs to ultimately know. However, the majority opinion (authored by Justice Timmer) and the dissent (authored by Justice King, and joined by Justice Bolick) are in these authors’ opinions worth a read for those who want a better understanding of the contours of how “public policy” plays into the analysis of the enforceability of contract terms, especially in the real estate context and even more particularly in connection with contracts for the sale of new homes. The careful analysis of both the majority opinion and the dissent provides an excellent history of the implied warranty, the public policy behind it, and its scope and application in the context of competing public policies, most notably the freedom to contract.

Reprinted courtesy of Robert A. Henry, Snell & Wilmer and Emily R. Parker, Snell & Wilmer
Mr. Henry may be contacted at bhenry@swlaw.com
Ms. Parker may be contacted at eparker@swlaw.com



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