Implied Warrant of Habitability: Common Elements, Essential Services

Lakeview Reserve Homeowners v. Maronda Homes, Inc., ___ So. 3d ___, 35 Fla. L. Weekly D2413 (Fla. 5th DCA 10/27/10)

The Fifth District Court of Appeal held that “the implied warranties of fitness for a particular purpose, habitability, and merchantability apply to structures in common areas of a subdivision that immediately support the residence in the form of essential services.”  The case before the court involved defects in roadways, drainage systems, retention ponds, and underground pipes, and the court held that these “are services essential to the habitability of the home for purposes of application of the implied warranties.”

In Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983), the Florida Supreme Court “held that implied warranties of fitness and merchantability do not extend to first purchasers of residential real estate for improvements to land other than construction of a home and other improvements ‘immediately supporting the residence thereon, such as water wells and septic tanks.’”  The Conklin case dealt with purchasers of vacant lots for resale to other investors or homebuilders.  These investor-purchasers “sought to recover from the developer for defects in a seawall abutting and buttressing the lots.”  When the lots were purchased, “the seawall was the only improvement to the land.”  In Port Sewall Harbor & Tennis Club Owners Association, Inc. v. First Federal Savings and Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985), the Fourth District Court of Appeal applied Conklin to reach the  “conclusion that roads and drainage in a subdivision do not immediately support the residences.”  The Fifth District read Conklin more broadly to interpret the phrase “immediately support the residence” to refer to essential services that make a home habitable and, thus, fit for its intended use and certified conflict with the decision of the Fourth District Court of Appeal.  The Fifth District also rejected the developer’s position that the individual homeowners, rather than the association, must bring claims for defects in the common elements, that Conklin limits warranties to structures physically attached to the house, and that the extension of implied warranties is a matter for the legislature.