Arizona Court of Appeals, Division One holds that buyers cannot waive the implied warranty of workmanship and habitability, even by contract.

A homebuyer sued a homebuilder for breach of the implied warranty of workmanship and habitability, despite having signed a contract expressly waiving this warranty.  Based on the language in the contract, the builder moved for summary judgment, which the trial court granted.

The Court of Appeals reversed.  The Court of Appeals noted the state’s policy interest in holding parties to their freely negotiated contracts.  But after citing (1) the consumer protection interests underlying the Arizona Supreme Court’s initial recognition of the warranty of workmanship and habitability in Columbia Western Corp. v. Vela, 122 Ariz. 28, 32–33 (App. 1979) and (2) Arizona courts’ continuous recognition of this warranty, the Court of Appeals held that the warranty cannot be waived.

Judge Gass authored the opinion in which Judges Perkins and Brown joined.