AMI 1207 Defense—Exclusion or Waiver of Implied Warranties of Habitability, Sound Workmanship, ...

Use this instruction when the defendant asserts the exclusion or waiver of an implied warranty.

“[I]mplied warranties may be excluded when the circumstances surrounding the transaction are in themselves sufficient to call the buyer's attention to the fact that no implied warranties are made or that a certain implied warranty is excluded.” O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). As a matter of law, the implied warranty of habitability is excluded when the buyer purchases the property “as is.” Id.; Bankston v. McKenzie, 287 Ark. 350, 698 S.W.2d 799 (1985); Morris v. Rush, 77 Ark. App. 11, 69 S.W.3d 876 (2002).

When a contract for residential construction contains an express warranty on a subject, that warranty is exclusive and there can be no implied warranty on that subject. Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978). However, in order for an express warranty to exclude the implied warranties of habitability, sound workmanship, and proper construction, the express warranty must expressly promise habitability, sound workmanship, and proper construction. Bullington v. Palangio, 345 Ark. 320, 45 S.W.3d 834 (2001); Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983).

Waiver of defects is a question of fact to be determined from the circumstances of the case. Carter, supra. In Carter, the Court found that each of the following circumstances do not, alone, constitute waiver of the defects by the purchaser and that such circumstances should be considered collectively: acceptance upon assurances that defects would be corrected; acceptance and occupancy by the owner of the land upon a promise that defects would be corrected; and payment of the contract price and occupancy by owner, even with knowledge of defects. Id.