PJC Business

DTPA/I NSURANCE C ODE

PJC 102.13

PJC 102.13 Implied Warranty of Habitability (DTPA § 17.50(a)(2)) Selling a home that was not suitable for human habitation [ or ]

COMMENT When to use. PJC 102.13 may be used with PJC 102.8 to submit a claim of breach of implied warranty of habitability. See Tex. Bus. & Com. Code §17.50(a)(2) (DTPA); Humber v. Morton , 426 S.W.2d 554, 559 (Tex. 1968) (implied warranty of habitability in new home construction). During the period in which the Texas Residen tial Construction Commission Act was in effect (September 1, 2003, to September 1, 2009), the workmanship and habitability warranties for new residential construction were supplanted by statute. See former Tex. Prop. Code §§ 401.006, 408.001(2). Use of “or.” If used with other instructions (see PJC 102.9–102.12), PJC 102.13 must be followed by the word or , because a finding of any one of the acts or practices defined in the instructions would support recovery under the DTPA. Habitability in residential leases. In Kamarath v. Bennett , 568 S.W.2d 658, 660– 61 (Tex. 1978), the court found an implied warranty of habitability applicable to a rented apartment. However, legislation has since been passed setting forth the specific duties of a landlord “to repair and remedy” residential premises. Tex. Prop. Code § 92.052; see also Daitch v. Mid-America Apartment Communities, Inc. , 250 S.W.3d 191, 195 (Tex. App.—Dallas 2008, no pet.) (holding that Kamarath has been super seded by Tex. Prop. Code § 92.052). These duties are in lieu of existing common-law and statutory warranties. Tex. Prop. Code § 92.061. Suitability in commercial leases. In Davidow v. Inwood North Professional Group—Phase I , 747 S.W.2d 373, 377 (Tex. 1988), the court held that an implied war ranty of suitability had been breached in the commercial lease of a doctor’s office. See also Gym-N-I Playgrounds, Inc. v. Snider , 220 S.W.3d 905, 910 (Tex. 2007) (“ Davi dow merely expanded the application of the implied warranty of habitability already recognized in residential leases in Kamarath v. Bennett .”). In an appropriate case, the language of PJC 102.13 may be adapted to cover the breach of this warranty. Distinguished from “good and workmanlike” warranty. The Humber warranty contains two distinct elements: (1) warranty of good and workmanlike manner of con struction of a new home and (2) warranty of habitability. Evans v. J. Stiles, Inc. , 689 S.W.2d 399, 400 (Tex. 1985). Unlike the implied warranty of good and workmanlike performance, the implied warranty of habitability “looks only to the finished product” and “only protects new home buyers from conditions that are so defective that the property is unsuitable for its intended use as a home.” Centex Homes v. Buecher , 95 S.W.3d 266, 273 (Tex. 2002). As “compared to the warranty of good workmanship, the warranty of habitability represents a form of strict liability” because “the adequacy

159