Does a buyer of a new house have an implied warranty of good workmanship and fitness for habitation in the sale of a house to be completed?

British Columbia, Canada


The following excerpt is from Trimble Hill Properties Ltd. v. Zaharko, 1996 CanLII 1146 (BC CA):

33 In my view, the illogicality of the distinction resides in the fact that, as the law presently stands, an implied warranty will arise where a building is incomplete, yet that same warranty will vanish at the moment of comple­tion. The absence of any logical rationale for this emphasis on the "magic moment" of "completion" also disturbed the former Chief Justice of Canada, the Honourable Bora Laskin. In his lecture referred to above, he stated the follow­ing, at p.408: There is good reason hence to say that an implied obligation of good workmanship and fitness for habitation extends to the sale of a new house as well as to the sale of a house to be completed. There is English authority, Hoskins v. Woodham, against the contention I am making, but I am not persuaded that merely because a buyer has a full opportunity of inspec­tion of a hitherto unoccupied, newly completed house he should assume all the risks of defects of quality and fitness. It would be reasonable to bind him to defects discoverable on reasonable inspection but this would not extend to things like dampness or porousness which only occupation for some period would disclose. On my view, caveat emptor in its complete rigour should be confined, so far as quality and fitness are concerned, to the sale of "second hand" or "used" housing.

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