As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contra

More On Contract Clauses-The Warranty

The warranty section listed below is quite long. In some ways, this is unfortunate. The fact that contractors have to be so concerned about spelling out exactly what is or is not included in a warranty seems to go against the notion that an Owner and a Contractor should have a trusting relationship. However, it is better to make sure that there is a clear understanding between the parties about which items will be covered if a problem arises.

Here is a sample warranty clause:

Section Seven: Limited Warranty

Contractor guarantees that the Work will be constructed in a good and workmanlike manner and it will guarantee the Work against defects in workmanship and materials for a period of one (1) year from the date of its completion. Warranty work will be completed within sixty (60) days from the date of receipt of written request from the Owner.

Please note that this Limited Warranty specifically excludes consequential damages. This warranty is extended to the Owner. Contractor hereby passes through and assigns to the Owner any and all manufacturers’ warranties on all appliances and equipment supplies by Contractor in the home.

Contractor specifically does not assume responsibility for any of the following items, each of which is specifically excluded from this Limited Warranty;

1. Defects in appliances are covered by the manufacturers’ warranties which are hereby assigned directly to the Owner. Each manufacturer’s warranty claim procedure must be followed where a defect appears in any of those items.

2. Damage due to ordinary wear and tear, abusive use, misuse, or lack of proper maintenance of the home or its component parts or systems.

3. Defects which are not caused by the negligence of Contractor and or its subcontractors, but the result of characteristics common to the materials used such as, but not limited to;
(a) warping or deflection of wood;
(b) fading, chalking and checking of paint or stain due to sunlight;
(c) cracks in concrete due to drying and curing of concrete plaster, brick or masonry; and
(a) drying, shrinking and cracking of caulking and weather stripping.

(b) Where Contractor's work involves the matching of existing finishes or materials, Contractor will use his best efforts to match existing finishes and materials. However, Contractor does not guarantee an exact match due to such factors as discoloration due to the aging process, difference in dye lots, and difficulty of exactly matching certain finishes, colors, and planes.

4. Defects in items installed by the Owner or anyone other than Contractor or its subcontractors at Contractor's order.

5. Work done by the Owner or anyone other than Contractor or its subcontractors at Contractor ’s order.

6. Defects in items supplied by the Owner.

7. Loss or injury due to the elements not caused by the negligence of Contractor and its subcontractors.

8. Conditions not caused by Contractor and or its subcontractors resulting from condensation on, or contraction of materials.

9. Paint applied over newly plastered walls unless applied by Contractor or its subcontractors.

10. Consequential damages.

All implied warranties including, but not limited to warranties of merchantability and fitness for a particular purpose, are limited to the one (1) year warranty period as set forth above.

This Limited Warranty is the only expressed warranty given. In the event that any of the provisions of the Limited Warranty shall be held invalid, the remainder of the provisions of the Limited Warranty shall remain in full force and effect.

Contractor is not an architect, engineer, or designer. Contractor is not being hired to perform any of these services. To the extent that Contractor makes any suggestions in these areas, Owner acknowledges and agrees that Contractor’s suggestions are merely options that Owner may want to review with the appropriate design professional for consideration. Contractor’s suggestions are not a substitute for professional engineering, architectural, or design services, and are not to be relied on as such by Owner. Contractor is not responsible for ascertaining whether details in Owner 's plans conform to all applicable building and planning codes. Contractor is not responsible for the cost of correcting errors and omissions by Owner's design professionals and separate contractors.

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