Authored by attorney Casaundra Maimone
It goes without saying that a contractor should carefully review all of the proposed terms and negotiate all of the final terms of a construction contract such that the provisions are best tailored to their role on the project. Nonetheless, attentiveness to warranty terms is especially important due to the fact that, after a product warranty expires, the Contractor’s workmanship warranty could be relied upon instead. The Contractor should consider requiring the same type of warranties from its subcontractors as well. Likewise, warranties for equipment and materials should flow down from the manufacturer and supplier directly to the owner.
Generally, contracts for construction projects will include statutory and implied warranty obligations to the owner. To the extent possible, the Contractor should not agree to any additional or extra warranty obligations. A one-year warranty on workmanship is typical and acceptable but the Contractor should still attempt to establish definite commencement/end dates for all warranties and make sure that timely notice is required.
Contractors should also be careful to ensure that the one-year warranty is not extended by an obligation to perform remedial work. In context, this means paying attention to whether the contract characterizes repairs as “punch list” or “warranty” work. It may be advisable to seek counsel in order to determine whether it is in the Contractor’s best interests to describe repair activity as warranty work or punch list work.