Conklin v. Hurley

• Decision Date: 10 March 1983
• Docket Number: No. 61799,61799
• Citation: 428 So.2d 654
• Parties: Donald J. CONKLIN, et ux, et al., Petitioners, v. Faye Y. HURLEY, Raymond J. Hurley, and Carriage Hill Limited Partnership, Respondents.
• Court: Florida Supreme Court

Page 654

428 So.2d 654

Donald J. CONKLIN, et ux, et al., Petitioners, v. Faye Y. HURLEY, Raymond J. Hurley, and Carriage Hill Limited Partnership, Respondents.

No. 61799.

Supreme Court of Florida.

March 10, 1983.

Arthur C. Koski of Koski, Mateer, Gillespie & Allison, Boca Raton, for petitioners.

Jerry Oxner, West Palm Beach, Chesterfield Smith, Steven D. Merryday and Steven L. Brannock of Holland & Knight, Tampa, and Robert S. Levy of Robert S. Levy, P.A., West Palm Beach, for respondents.

Stephen W. Metz, Robert M. Rhodes and James C. Hauser of Messer, Rhodes & Vickers, Tallahassee, for Florida Home Builders Ass'n, amicus curiae.

McDONALD, Justice.

The Fourth District Court of Appeal has certified to us that its decision in this cause passes upon a question of great public importance. We have jurisdiction pursuant to Florida Constitution, article V, section 3(b)(4). The question certified to us is:

Do implied warranties of fitness and merchantability extend to first purchasers of residential real estate for improvements to the land other than construction of a home and other improvements immediately supporting the residence thereon, such as water wells and septic tanks?

Hurley v. Conklin, 409 So.2d 148, 151 (Fla. 4th DCA 1982). We approve the lower court's refusal to extend implied warranties of fitness and merchantability to the facts at hand and respond to the certified question.

Petitioners each purchased vacant waterfront lots from respondent Carriage Hill Limited Partnership (Carriage Hill), a subdivision developer. During the course of development respondent Raymond S. Hurley (Hurley), acting as managing general partner for Carriage Hill, entered into a contract with P & H Seawall and Piling Company (P & H), which was also managed by Hurley, for the construction of a seawall abutting the lots subsequently purchased by petitioners.

In 1971 and 1972 Carriage Hill entered into contracts for the sale of the lots involved in this suit. With one exception each of these contracts was assigned to third parties before being purchased by the respective petitioners. However, in each instance, upon closing, the deed to the property passed directly from Carriage Hill to the individual petitioners.

Following unusually heavy rains in January 1974, 250 feet of seawall abutting petitioners' lots collapsed. The five petitioners filed actions against Carriage Hill for breach of an implied warranty of fitness. Carriage Hill joined Mr. and Mrs. Hurley as third party defendants in a claim for indemnity. The trial court found that an implied warranty of fitness extended to petitioners and that such warranty had been breached. The court further found that Carriage Hill was entitled to be indemnified by the Hurleys. The Fourth District Court of Appeal reversed the trial court, holding that the doctrine of implied warranty of fitness, previously extended in this state to purchasers of new homes, should not be extended to protect purchasers of residential lots on which seawalls had been constructed.

Petitioners urge that imputing to Carriage Hill an implied warranty of fitness covering the collapsed seawall abutting their lots is a reasonable extension of the holding of Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA), cert. dismissed, 264 So.2d 418 (Fla.1972). ¹ Evaluation of this argument requires, first, that we examine the policy underpinning Gable and its forebears in other states.

With Gable Florida joined a rapidly growing minority of states which has recognized, as an exception to the general rule of caveat emptor in sales of real estate, an implied warranty of habitability or merchantability in the sale of new residences. A majority of the jurisdictions in this country now recognizes such a warranty. ² The significance of this rapid development in the law is best seen in historical perspective. The maxim caveat emptor, while originally developed to regulate the sale of chattels in the 17th and 18th centuries, also served as a convenient rule by which to resolve disputes arising from the sale of real property. ³ In the middle of this century an increasing number of courts and legislatures began to recognize that modern mass-production and mass-marketing techniques had unbalanced the relative bargaining strengths of consumers and manufacturers of personalty. For example, several decisions in the early 1960s were based in part upon the reliance placed upon automobile manufacturers as a deliberate result of nationwide sales and marketing. Lang v. General Motors Corp., 136 N.W.2d 805 (N.D.1965); Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960). Of broader effect was the passage by virtually every state of the Uniform Commercial Code, section 314 of which provides an implied warranty of merchantability for goods sold by a merchant in kind. ⁴

Parallel to, and in some cases drawing upon, these developments in the implied warranty of goods, a number of American courts began to find implied warranties of fitness or habitability in the sale of new residences if the dwellings were still under construction. ⁵ Finally, in the 1960s the implied warranty of habitability began to be extended to first purchasers of completed houses when bought from the builder-vendor. ⁶ In commenting on the developing trend, the Supreme Court of Arkansas noted the disparity of protection otherwise afforded buyers of goods as opposed to new home buyers.

Yet there is nothing really surprising in the modern trend. The contrast between the rules of law applicable to the sale of personal property was so great as to be indefensible. One who brought a chattel as simple as a walking stick or a kitchen mop was entitled to get his money back if the article was not of merchantable quality. But the purchaser of a $50,000 home ordinarily had no remedy even if the foundation proved so defective that the structure collapsed into a heap of rubble.

Wawak v. Stewart, 247 Ark. 1093, 1094-95, 449 S.W.2d 922, 923 (1970). Another in this line of cases draws the analogy between the purchase of a new home and other property, more traditionally viewed as chattel, even more clearly:

Although considered to be a "real estate" transaction because the ownership to land is transferred, the purchase of a resident is in most cases the purchase of a manufactured product--the house. The land involved is seldom the prime element in such a purchase, certainly not in the urban areas of the state.

Smith v. Old Warson Development Company, 479 S.W.2d 795, 799 (Mo.1972).

Seen in light of the historic application of caveat emptor to sales in general and the derogation of that maxim in the sales of chattel goods, it is plain that Gable and its forebears recognize a distinction between modern home-buying practices and traditional real estate sales in which land was the key element. ⁷ As expressed in DeRoche v. Dame, 75 A.D.2d 384, 387, 430 N.Y.S.2d 390 (N.Y.), appeal dismissed, 51 N.Y.2d 821, 413 N.E.2d 366, 433 N.Y.S.2d 427 (1980):

The rationale of the cases which relax or abandon the doctrine of caveat emptor is that the purchaser is not in an equal bargaining position with the builder-vendor of a new dwelling, and the purchaser is forced to rely upon the skill and knowledge of the builder-vendor with respect to the materials and workmanship of an adequately constructed dwelling house. Furthermore, those courts recognize that although the contract may be couched in terms of the sale of realty, the purchaser sees the transaction primarily as the purchase of a house, with the land incident thereto.

Common threads running through all the decisions extending implied warranties to purchasers of new houses are the inability of the ordinarily prudent homebuyer to detect flaws in the construction of modern houses and the chattel-like quality of such mass-produced houses. ⁸ In commentaries frequently referred to in the cases extending implied warranties to purchasers of new homes legal scholars have pointed to these factors as prime reasons for the inequity of applying caveat emptor to such sales. ⁹ These were certainly the concerns of this Court when it adopted as its own the decision of the Fourth District Court of Appeal in Gable.

Returning to the case at hand, we fail to see how the policy upon which Gable and its kindred were based would be furthered by application here. None of the petitioners purchased a dwelling from Carriage Hill. The seawall was not part of a completed structure. Indeed, each of the petitioners bought what was essentially an empty lot, the only improvement being the defective seawall. Purchasers of such relatively unimproved realty may more reasonably be expected to inspect the property knowledgeably before purchase and may more likely be able to bargain for an express warranty than those who buy as complex a structure as a modern home.

Our view is supported by several recent decisions of jurisdictions which have held the doctrine of implied warranty inapplicable to the sale or long-term lease of land per se. Cook v. Salishan Properties, Inc., 279 Or. 333, 569 P.2d 1033 (1977); Witty v. Schramm, 62 Ill.App.3d 185, 19 Ill.Dec. 669, 379 N.E.2d 333 (1978); Jackson v. River Pines, 276 S.C. 29, 274 S.E.2d 912 (1981). While none of these cases involved land with the identical type and degree of development presented here, we find the reasoning in each to be applicable and persuasive.

In Cook plaintiffs entered into a 99-year lease ¹⁰ on a residential, seaside lot which was part of a large residential resort development. After plaintiffs built a permanent home on the lot, erosion of the lot diminished the value of both house and lot. Plaintiffs argued that pursuant to Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974), the developers impliedly warranted that the lot was fit for construction of permanent residential structures. In rejecting this argument the Oregon court reasoned:

These justifications, which we found persuasive in the...