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Is the warranty waived by homeowners refusal to allow repairs?

Oklahoma

I represent a residential home construction contractor who was placed on notice of defective work. The homeowner requests warranty repairs but will not allow the contractor to return to the home and make the repairs. Does the homeowner waive his warranty by not allowing the repairs? Does the contractor have any right to make repairs itself?

1 reply

Oct 20, 2020

If you are referring to a call back warranty, which are extremely common in construction contracts, the warranty establishes a period of time after the work is substantially completed, during which an owner can "call back" a contractor to correct work that wasn't performed correctly. The call back period is often one year, however the contract can specify a different period, therefore always read and follow the language in the contract. 

In regards to call back warranties, the property owner is obligated to notify the contractor and allow them to repair the defective work on their own. The contractor has the right to repair the defect before the owner takes other measures to get the work fixed. In regards to your case, if the repair request was made during the time period specified in the call back warranty, the property owner has to allow the contractor to return and repair the issue. 

The typical one year warranty period specifically refers to the obligation of the owner to give the contractor the right to cure , and the contractor's right to be able to fix the defective work. 

If a right to cure is given, but the opportunity to cure isn't actually given, the party making the claim can be held liable. It is common that the property owner that makes an improper defect claim will be held liable for their contractor's legal costs in defending against the claim. Therefore, if the property owner continues to not allow the contractor to cure the problem alleged and a suit is filed, the property owner likely will be held liable due to their unfulfillment of right to cure. 

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