On March 14, 2012, the Supreme Court of Ohio decided Jones v. Centex Homes, 2012-Ohio-1001, 132 Ohio St. 3d 1, 967 N.E.2d 1199 (2012).  The sole issue before the Court was “whether a homebuyer can waive his right to enforce a homebuilder’s legal duty to construct a house in a workmanlike manner.”  The Ohio Supreme Court held unanimously that this right cannot be waived. 

Two homeowners filed separate lawsuits against the builder Centex Homes.  After the homeowners moved in, they found that their electronic equipment did not work properly.  They alleged that the reason the equipment was not functioning properly was because the metal joists in the house were magnetized. 

The homebuilder’s contract, which the homeowners signed, contained a provision that waived all warranties except specific express warranties provided in a separate Limited Home Warranty Booklet.  The Ohio trial court ruled in favor of the homebuilder, holding that a waiver of the implied duty to construct a house in a workmanlike manner was permissible so long as it was conspicuous, unambiguous and fully disclosed.

The Ohio Supreme Court however, disagreed and reversed, reinstating the Plaintiff’s claims.  The Ohio Supreme Court reaffirmed that there is an implied “duty” on the part of every homebuilder to construct a house in a workmanlike manner and that, if that duty is violated, the homeowner has a claim for breach of that duty.  It was not a “warranty,” but instead a “duty” and thus, a duty cannot be excluded by written contract disclaimer.

Comment: The Ohio decision is in the minority. The majority of states that have considered this question have held that disclaimers of implied warranties are not contrary to public policy.  Those courts agree that parties have the freedom to contractually define their respective responsibilities.  In light of this ruling, however, homebuilders should be aware that, regardless of what their contracts might say or disclaim, courts may enforce an “implied” and unwritten duty to build in a workmanlike and proper manner.  It is a duty that cannot be disclaimed.  Washington State does provide for an implied warranty of habitability on all new home construction that cannot be disclaimed.

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