Sloat v. Matheny , 605 P.2d 71 ( 1980 )

PIERCE, Judge.

Defendant C. E. Matheny appeals a judgment holding him liable to plaintiffs for breach of implied warranties of workmanlike construction and habitability arising from the sale of a new home. We reverse.

The underlying facts are not in dispute. In 1976, Matheny was building a house, the subject of this suit, which he planned to occupy with his family. During the course of construction, financial difficulties developed compelling him to sell the unfinished house and it was listed with a real estate agent! Plaintiffs purchased the home, and a short time after the sale was completed, problems developed with the driveway, the redwood deck, the air conditioner, and the television antenna and amplifier system. Plaintiffs commenced this action to recover damages for these defects.

Evidence adduced at trial reveals that express warranties had been requested by plaintiffs, but that Matheny had refused to provide any. The trial court found, however, that plaintiffs had relied on Matheny’s expertise as a builder and it concluded that Matheny had impliedly warranted the workmanship and habitability of the house. The court held that Matheny breached these warranties and awarded plaintiffs damages.

In Colorado we have witnessed an erosion of the rule of caveat emptor, and the emergence of a new theory of liability in the'area of new home construction. Now a “builder-vendor” impliedly warrants to the purchaser of a new home that the home was constructed in a workmanlike manner and is suitable for habitation. Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963). The reason for this rule was explained in Duncan v. Schuster-Graham Homes, Inc., Colo., 578 P.2d 637, 638 (1978), as being “to afford homé buyers protection from overreaching by comparatively more knowledgable builders-vendors.”

The imposition of implied warranties is not restricted to large scale developers; small builders, even first-time builders, may impliedly warrant their product if the “primary reason for constructing the house is to resell it.” Mazurek v. Nielsen, Colo.App., 599 P.2d 269, 271 (1979) (cert. denied August 27, 1979).

Here, the trial court concluded that Matheny was a “builder-vendor” as contemplated by Carpenter v. Donohoe, supra. In so concluding, the court stated that whether Matheny was building the house for his personal use or for sale to someone else was immaterial. In light of the holding in Ma-zurek, this was error mandating reversal.

The trial court did not have the benefit of the decision in Mazurek at the time of this trial; however, there we held that the builder-vendor status requires an element of commerciality in that the implied warranties of workmanlike construction and habitability emanate only from the purchase of new houses built for the purpose of sale.

The policy reasons for restricting the application of the doctrine of caveat emptor in the area of new home sales included a desire to eliminate the “ ‘unscrupulous, fly-by-night operator and purveyor of shoddy work’ ” from the home construction business and to make commercial builders responsible for the “ ‘sloppy work and jerry-building’ ” often found in high density tract housing. McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979). These policy reasons are inapplicable, however, when a home is-constructed by the builder for his own use rather than for resale.

Additionally, the implied warranties of workmanship and habitability arise from the nature of the sale; not from the builder’s experience or expertise as a builder of homes. Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 (1975). For these implied warranties to attach, the sale must be commercial in nature and not casual or personal. Klos v. Gockel, 87 Wash.2d 567, 554 P.2d 1349 (1976).

Here, although Matheny was employed in the building industry and had previously built one other house for his own use, plaintiffs have not challenged his contention that he was building this house for his personal use and sold it only because he encountered financial difficulties. Thus, this was not a commercial sale giving rise to the implied warranties of workmanship and habitability.

The judgment is reversed and the cause is remanded with directions to dismiss the complaint.

SMITH, J., concurs. STERNBERG, J., dissents.