Hesson v. Walmsley Const. Co.

• Decision Date: 03 November 1982
• Docket Number: No. 81-1906,81-1906
• Citation: 422 So.2d 943
• Parties: Robert E. HESSON and Virginia C. Hesson, husband and wife, Appellants, v. WALMSLEY CONSTRUCTION COMPANY, a Florida corporation, Walmsley Homes, Inc., a Florida Corporation, Thomas Walmsley, Thomas B. Walmsley, Robert Walmsley and Gareth Walmsley, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 943

422 So.2d 943

Robert E. HESSON and Virginia C. Hesson, husband and wife, Appellants, v. WALMSLEY CONSTRUCTION COMPANY, a Florida corporation, Walmsley Homes, Inc., a Florida Corporation, Thomas Walmsley, Thomas B. Walmsley, Robert Walmsley and Gareth Walmsley, jointly and severally, Appellees.

No. 81-1906.

District Court of Appeal of Florida,

Second District.

Nov. 3, 1982.

Rehearing Denied Dec. 3, 1982.

Robert C. Hesson, of Hazen & Morris, P.A., Venice, for appellants.

W. Russell Snyder, Venice, for appellees.

SCHEB, Judge.

In this opinion we discuss the applicability of the doctrine of implied warranty of habitability to the sale of a new house and lot by a builder-vendor to an original purchaser.

In 1975 appellants purchased a house and lot from appellees. The house was new, having just been completed by appellees, the builders, who selected the lot and sold the house and lot as a package. A year or so later, cracks developed in the house, presumably from the house settling on the lot. Appellants sued appellees on four theories: breach of contract, fraud, negligence, and breach of implied warranty of habitability. The trial court directed a verdict in favor of appellees on the contract and fraud counts, and the case went to the jury on the counts alleging negligence and breach of implied warranty. The jury returned its verdict in favor of appellees, and the trial court entered final judgment thereon. This appeal ensued.

Appellants challenge several of the trial court's instructions to the jury. The only point that merits discussion is their contention that the court erred in declining to give their requested instruction that the test for breach of implied warranty of habitability is whether the premises met ordinary, normal standards reasonably expected of living quarters of comparable kind. We reject the other points raised by appellants.

Contrary to appellants' requested instruction, the court instructed the jury that if no substantial defects existed in the construction of the house and the settlement was caused by subsurface conditions of the land, then the jury's verdict should be for the appellees. Therefore, we focus on the issue of whether the trial judge erred in not instructing the jury that the implied warranty of habitability extended to the entire package, i.e., the house and lot sold by the builder-vendor appellees.

Prior to the 1960's the rule in most states with regard to the sale of new homes was that unless there was an express warranty, absent fraud, caveat emptor applied. Caveat emptor has largely disappeared in respect to many transactions involving sales of personal property, yet the doctrines of real property law have tended to inhibit the application of implied warranties in respect to real estate transactions. See Fegeas v. Sherill, 218 Md. 472, 147 A.2d 223 (1958); 7 S. Williston, A Treatise on the Law of Contracts §§ 926, 926A (3d ed.1963). In recent years, however, there has been a tendency for courts to hold developers who sell real property responsible for the quality of their products. See generally Note, Liability of the Builder-Vendor Under the Implied Warranty of Habitability--Where Does It End?, 13 Creighton L.Rev. 593 (1979); Note, Housing Defects: Homeowners' Remedies--A Time for Legislative Action, 21 Washburn L.J. 72 (1981).

A number of states now hold that implied warranties of fitness and habitability arise from the sale of new homes. See generally Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971); Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Conyers v. Molloy, 50 Ill.App.3d 17, 7 Ill.Dec. 695, 364 N.E.2d 986 (1977); Theis v. Heuer, 264 Ind. 1, 280 N.E.2d 300 (1972); Loch Hill Construction Co. v. Fricke, 284 Md. 708, 399 A.2d 883 (1979); Banville v. Huckins, 407 A.2d 294 (Me.1979); Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974); McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979); Lyon v. Ward, 28 N.C.App. 446, 221 S.E.2d 727 (1976); Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974); Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 (1975); Tavares v. Horstman, 542 P.2d 1275 (Wyo.1975). However, a few states still refuse to decide that there are implied warranties of fitness in the sale of a new home. See P.B.R. Enterprises, Inc. v. Perren, 243 Ga. 280, 253 S.E.2d 765 (1979); Bruce Farms, Inc. v. Coupe, 219 Va. 287, 247 S.E.2d 400 (1978). Since adoption of the modern rule by an increasing number of states, the doctrine of implied warranty has been one of continuing development.

In Gable v. Silver, 264 So.2d 418 (Fla.1972), the Florida Supreme Court held that implied warranties of fitness and merchantability extend to the purchase of new homes or condominiums from builders. Whether the warranty extended to subsurface conditions was not an issue in Gable. The following year, in Burger v. Hector, 278 So.2d 636 (Fla. 1st DCA 1973), the First District refused to extend the doctrine of implied warranty to a builder where damage to a new house was caused by the subsoil condition on the lot purchased separately by the owner.

In recent years it has become more common for purchasers of new homes to buy a package, i.e., a house and lot, from a builder rather than merely to select a lot and have a house constructed thereon. As courts have recognized this trend, many have concluded that the implied warranty of habitability is breached not only because of structural defects, but also because of the unsuitable nature of the site on which the house was built.

In House v. Thornton, 76 Wash.2d 428, 457 P.2d 199 (1969), the Washington Supreme Court held that a builder-vendor who sells a new house impliedly warrants that the foundations supporting it are firm and secure, and that the house is structurally safe for the purchaser's intended purpose of living in it. This, the court noted, applied whether subsequent damage came from instability of the land, or from defects in the foundation's design or installation. The court opined:

As between vendor and purchaser, the builder-vendors, even though exercising reasonable care to construct a sound building, had by far the better opportunity to examine the stability of the site and to determine the kind of foundation to install .... [T]heir position throughout the process of selection, planning and construction was markedly superior to that of their first purchaser-occupant .... [O]f the innocent parties who suffered, it was the builder-vendor who made the harm possible.

457 P.2d...