In a recent but unpublished opinion, the Court of Appeals reversed summary judgment in favor of a builder and remanded for further proceedings a residential buyer's claims that the builder had breached the implied warranty of habitability. The decision contains a useful discussion of the implied warranty. The decision, Haas v. Kartashev, can be accessed here. Download file We rarely discuss unpublished opinions here, but as DWT represented the buyer in the case, we thought it worthy of note.

In 2005, plaintiff John Haas purchased a residence in Camas, Washington, from Valery Kartashev. Kartashev had acted as the general contractor on the house, although claimed he was simply a plumber. Kartashev lived in the home for nearly two years (the exact duration is disputed) before selling to Haas.

Under Washington law, a “vendor-builder” is “a person regularly engaged in building, so that the sale is commercial rather than casual or personal in nature.” Klos v. Gockel, 87 Wn.2d 567, 570, 554 P.2d 1349 (1976). When a vendor-builder sells a new house to its first intended occupant, there is an implied warranty “that the foundations supporting it are firm and secure and that the house is structurally safe for the buyer’s intended purpose of living in it.” House v. Thornton, 76 Wn.2d 428, 436, 457 P.2d 199 (1969). “[T]he sale must be fairly contemporaneous with completion and not interrupted by an intervening tenancy unless the builder-vendor created such an intervening tenancy for the primary purpose of promoting the sale of the property.” Klos, 87 Wn.2d at 571. An implied warranty does not attach merely because “the [vendor] contemplated an eventual sale.” Klos, 87 Wn.2d at 570. What constitutes a “new house” is a question of fact; while the passage of time will “cancel [implied warranty] liability, ... just how much time need pass varies with each case.” Klos, 87 Wn.2d at 571.

The trial court dismissed Haas’s claims against Kartashev on summary judgment, holding as a matter of law that Kartashev was merely a casual builder and that his intervening tenancy immunized him from liability to Haas.

The Court of Appeals disagreed, holding that there were genuine issues of material fact requiring trial on these issues. A pattern of home-building suggested that Kartashev was more than a “casual” builder. Further, the facts also suggested that Kartashev resided in the Camas house primarily to gain favorable tax treatment on resale, and continued to work on the residence while living there, permitting a fact finder to conclude that the house was still “new” when sold to Haas and that the Kartashev tenancy was primarily to promote the sale of the property.

The opinion also addresses what defects may violate the implied warranty and Haas’s claims for breach of contract, violation of the Consumer Protection Act, and fraudulent inducement. On each claim, the Court of Appeals found sufficient facts to merit a trial.