REAL CASES IN REAL ESTATE
By Andrea Lee Negroni, Esq.
BuckleySandler LLP
alnegroni@buckleysandler.com
Indiana Court Applies Common Law Warranty of Habitability
to Manufactured Home Infested With Toxic Mold.
An Indiana Appeals Court reviewed
35 years of the state's common law on the warranty of habitability in deciding Dinsmore v. Fleetwood Homes of Tennessee
in 2009. The Court rejected the argument that the warranty of habitability is
inapplicable to manufactured homes. The case is instructive on the distinction
between Indiana's new home construction warranty statute and the common
law warranty of habitability.
Sandra Dinsmore bought a
manufactured home in 1999, which she later claimed was defectively made,
leading to toxic mold infestation and making it unsafe as a dwelling. Also in
1999, the Indiana Supreme Court issued a decision describing the state's common
law warranty of habitability, beginning with a 1972 decision overturning the
"buyer beware" doctrine in new home sales. That case announces that a builder's
sale of a new house to the first buyer legally implies the house is fit to live
in. The common law warranty of habitability in Indiana developed to include
extension of the implied warranty to subsequent buyers if there are latent or
hidden defects in the home, and the builder originally caused the defects. The
doctrine was expanded further to require the builder be given notice of the
defects and an opportunity to cure them. The type of defects relevant to the
warranty of habitability are those that "substantially impair the use and
enjoyment" of the home.
Indiana also has a new home
construction warranty statute which allows a home builder to avoid all implied
warranties if a disclaimer of warranties is written into the sales agreement
and the builder has insurance covering reasonably foreseeable damages that
could arise from construction defects. In this case, Fleetwood, the
manufactured home builder, did not follow the disclaimer procedures, leaving
open the door to Dinsmore's lawsuit on implied warranty grounds.
Fleetwood's argument that the
implied warranty of habitability may not apply to manufactured homes was no
persuasive to the Court. The owner's manual provided to Dinsmore congratulated
her on choosing "[her] new residence" and described the manufacturer as "one of
the nation's largest producers of quality homes." In Indiana, the jurisprudence
on the common law warranty of habitability can now be said to reject claims
that site-built and manufactured homes should be treated differently.
Lexis.com subscribers can view the enhanced version of Dinsmore
v. Fleetwood Homes of Tenn., Inc., 906 N.E.2d 186 (Ind. Ct. App. 2009)
Non-subscribers can use lexisOne's Free Case Law search to view the free,
un-enhanced version of Dinsmore v. Fleetwood Homes of Tenn., Inc., 906 N.E.2d 186
(Ind. Ct. App. 2009)
"Shockingly Foul" Odors From an Apartment Warrant
Eviction of the Tenant.
A New York condominium owner
sought to evict a tenant for creating a nuisance on the premises. The nuisance
claim was based on foul odors coming from her apartment. The property owner was
at a disadvantage because New York law suggests that odors are one of the
inescapable realities of urban life for those who live in close quarters. In
this case, however, the odors coming from the tenant's apartment were
considered by the appeals court not to be of the "unavoidable" variety.
Two firefighters visited the
apartment a month before the trial and testified to "shockingly foul odors" and
stench from the apartment. With the door closed, the odor was somewhat less,
but it still permeated the premises. One of the firefighters also testified
that the apartment was cluttered with debris, furniture and boxes. Years
earlier, the condominium unsuccessfully tried to evict the same tenant for
allowing flooding in her apartment and permitting a cockroach infestation. The
court concluded that ordering her to improve the conditions in her apartment
was not likely to change anything, because she had not complied with an earlier
order. Therefore, the eviction was allowed.
Lexis.com subscribers can view the enhanced version of Zipper
v. Haroldon Ct. Condominium, 2007 NY Slip Op 3179 (N.Y. App. Div. 1st Dep't
2007)
Non-subscribers can use lexisOne's Free Case Law search to view the free,
un-enhanced version of Zipper v. Haroldon Ct. Condominium, 2007 NY Slip Op 3179 (N.Y.
App. Div. 1st Dep't 2007)