Some Words About Warranties
Very generally, a warranty is a promise that work or materials will perform in a certain way… and a promise to take certain steps if they don’t (usually replacement of failed components – but not always).
In most cases, a warranty does not depend upon the performance of the contractor or the manufacturer. In other words, there is usually no need to prove that anyone made a “mistake” or that there has been some sort of breach of contract. The party wishing to take advantage of the warranty only needs to prove that there has been a failure covered by the promise (ie. by the warranty). And of course, the party wishing to take advantage of the warranty must comply with all other conditions of the warranty. Typical warranty conditions include the following:
- A written complaint usually must be sent to the warrantor by a stated deadline (the warranty period). [It is often wise to arrange for careful inspection of the work or materials – often by an expert – before expiry of a warranty period… to check for any failures covered by the warranty.]
Note that the warranty period is typically not the same as a limitation period (for starting a Court claim). They are typically separate time periods; but the “triggering of the warranty” may in some cases start the limitation period running (for any required breach of warranty claim). Anytime there is any doubt about whether or not the warrantor will honour the warranty, I recommend seeking legal advice right away.
- The work or material usually must not be altered or adjusted by anyone other than the warrantor.
- The work or material usually must be reasonably maintained and must not be harmed in any way (by someone other than the warrantor).
- There can of course be many other conditions or restrictions for any given warranty.
Most importantly, the complaining party may still have other rights in addition to the warranty. Put another way: A warranty normally does not waive other rights, unless there are very clear statements that the other rights are in fact waived. [Also, consumer protection law may prevent waiver of some rights.] By “other rights”, I mean such things as:
- Any rights for breach of contract.
- Any rights for negligent or sub-standard manufacture or supply.
- Any rights for negligent or sub-standard performance of work.
- Any rights for misrepresentation.
- Any rights for breach of trust, breach of fiduciary duty or oppression.
- Any implied warranties, including implied warranties under the Sale of Goods Act or implied warranties that apply to purchases of new (incomplete) homes.
- Any statutory rights or warranties, including “Tarion warranties” (under the New Home Warranties Plan Act).
The point is that “missing out on a warranty” doesn’t necessarily mean that all is lost. Again, other rights may still apply.
But for the “other rights”, some additional “proof” (like proof of negligence or poor performance) may be needed. This is something that has to be carefully assessed in each case. And in each case, it is important to start any required legal process before expiry of the applicable limitation period. This again is something to be watched closely in every case.
Finally, condominium corporations should be aware of Section 96 of the Condominium Act, which reads as follows:
96 (1) All warranties given with respect to work and materials furnished for a unit shall be for the benefit of an owner.
Enforcement by corporation
(2) The corporation may enforce the warranties mentioned in subsection (1) on behalf of an owner if the corporation does work on behalf of the owner under section 92.
Same, common elements
(3) All warranties given with respect to work and materials furnished for the common elements shall be for the benefit of the corporation.
The Courts have confirmed that the above provisions apply to both express and implied warranties. Furthermore, the above provisions apply to warranties given to another party (like a Builder) if they relate to the condominium property. [This is one reason that it is important to obtain all warranties from the Declarant, per Section 43 (5) of the Condominium Act.] The bottom line is that warranties can be exceptionally important to condominium owners and condominium corporations. But at the same time, a warranty isn’t necessarily the only right available in a given case.
Stay tuned to Condo Law News to keep up to date on the latest developments on condominium law!