Citation. Axline v. Kutner, 863 S.W.2d 421, 1993)
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Brief Fact Summary.
Axline, (Appellant) appeals a judgment by the trial court granting a motion for partial summary judgment brought by Kutner’s, (Appellee).
Synopsis of Rule of Law.
In order to disclaim a warranty of habitability, the language of the disclaimer must be clear and give adequate notice to the buyer of the protections the buyer is disclaiming.
Facts.
Appellant, a home buyer, claims the term “one-year limited warranty” is meaningless because the contract did not indicate what Appellee, the builder, was warranting. Appellee relies upon handwritten language in the contract disclaiming all warranties not expressly granted in the contract.
Issue.
Whether the contract terms that limited the warranties included in the real estate transaction to one year are valid.
Held.
No. The warranty was not properly disclaimed because the one-year builder’s warranty did not indicate what the builder was warranting.
Discussion.
A builder makes implied representations that the builder has used reasonable skill and judgment . A buyer cannot fully examine a complete house without disturbing the product and does not have the opportunity to see how a new house withstands the passage of time. Therefore disclaimers must be clear and unambiguous, adequately notifying buyers of the protections they are disclaiming.
