Implied Warranty of the Owner Regarding Plans and Specifications
Purchasers of a new home receive an implied warranty of habitability that applies when certain conditions are met:
(2) The defendants had constructed the residence;
(3) The residence had not been inhabited by any other person or persons prior to the purchase of the residence;
(4) The residence was constructed by the defendants for purposes of sale and was sold in a defective condition, which defective condition impaired the intended use of the residence, namely, inhabitation;
(5) Plaintiffs were not aware of the defective condition and were not possessed of any knowledge or notice by which they could have reasonably discovered it;
(6) By reason of the defective condition, the plaintiffs suffered damages in the form of a decrease in the fair market value of the residence.
Sims v. Lewis, 374 So.2d 298, 303 (Ala. 1979). However, a question exists as to whether an implied warranty of habitability arises when a defendant builds a home on the plaintiff’s land pursuant to plans supplied by the plaintiff. See Lowery v. Poore, 447 So. 2d 801, 802 (Ala. Civ. App. 1984) (no implied warranty of habitability because plaintiffs “contracted with the defendant to build a home on their own land according to plans the plaintiffs supplied.”). The purchaser of a used residence has no implied warranty of habitability. Boackle v. Bedwell Const. Co., Inc., No. 1980392, 2000 WL 378191 (Ala. Apr. 14, 2000). Further, the implied warranty of habitability does not related to the sale of land. Scott v. Gill 352 So.2d 1143, 1145 (Ala.Civ.App. 1977). Finally, a builder of a residence gives no implied warranty of fitness for particular purpose or for merchantability. See Hardon v. Ritter, 710 So. 2d 1254, 1259 (Ala. Civ. App. 1997) (granting motion to dismiss U.C.C. implied warranty claims based on claim that builder failed “to use materials and supply workmanship of adequate and sufficient quality” because the dwelling that was the subject of the complaint was not a “good”).
