By Quenda Behler
In the construction business, perfection is hard to come by.
And if the thing that's being built isn't perfect, then someone
must decide whether it's "good enough."
Say you're looking at the kitchen you just installed and it
looks good enough to you, but the homeowner is complaining
about miters that aren't perfectly aligned, hinges that don't
line up, shelves that aren't level, and he doesn't like the
wood you chose.
How is good enough determined, especially when your customer
is demanding better? Is there some kind of law about
Yes, there is, but your legislature didn't sit down and write
it with you in mind. Sometime after the states adopted the
Uniform Commercial Code to regulate transactions between
retail sellers and their customers, the courts said, "Hey,
selling a house or a remodeling project is kind of like selling
a television or a pair of shoes, so let's apply the implied
warranties in the UCC to construction projects."
So through a process of legal evolution, the implied
warranties of the UCC became the standards for
evaluating the work in construction projects when no higher
standard is specified in the contract. Some states use
different names for these implied warranties, but they all
amount to the same two kinds of warranties: fitness-of-purpose
and workmanlike quality.
What's good enough is also affected by a variety of consumer
protection acts such as asbestos laws and financing
regulations, and it's affected by express warranties in your
contract. But, if you have conformed to all the consumer
protection laws and have not made any express warranties about
that kitchen you built, then the law of implied warranties will
determine if the construction of that kitchen is good
The implied warranty of fitness-of-purpose means that the
building is free from major structural defects and can be used
in the way it was intended to be used: It keeps the rain off.
It will not collapse in the first windstorm. The electricity is
hooked up and working so that people can do the things that
people do in modern houses. It has adequate water and a waste
supply that works so people don't have to use outdoor
facilities. (Think I'm kidding here? I'm not. I'm remembering a
particular lawsuit in which the plumbing stack hadn't been
This may all sound obvious, but these are the criteria that
the building inspectors use to issue an occupancy permit. The
occupancy permit is prima facie evidence that the
builder's work has met the warranty of fitness-for-purpose (or
warranty of habitability). What fitness-of-purpose means to you
as a builder is that you aren't done until your project can be
used in the way it was intended to be used. Fitness-of-purpose
does not require that the building be perfect.
The ugly cabinet wood you chose is not a violation of your
fitness-of-purpose warranty. Your customer cannot
successfully complain about that unless the contract
called for a particular type of wood.
a fertile ground for customer complaints, but if certain
materials or brand models are not specified in the contract,
implied warranties don't give the customer a legal basis for a
complaint about your choices, so long as they will work for
their purpose. If the customer wanted something else, he should
have written that choice into the contract.
However, if, in that kitchen you built, the cupboard door
hinges don't line up, that can be a breach of your warranty of
fitness-of-purpose because that can make those cupboard doors
gap open. If your shelves aren't level enough to keep the
dishes from sliding, that's a breach of warranty, because
fitness-of-purpose requires that the dishes be safe on the
Remember, though, that not every problem is a warranty
problem. If those cabinets aren't in the right place, or there
aren't enough of them, that has nothing to do with warranties;
those are contract problems.
The second implied warranty states that the building or
addition or remodeling project has been built in a workmanlike
manner and is up to the community standard of quality. A
workmanlike manner is not necessarily your customer's standard
of quality. It does not mean perfect or better than average,
and sometimes it doesn't even mean as good as average.
It's what's considered good enough work in your community.
That may not be what's considered good enough someplace else.
Community means the surrounding geographic area.
So whether your miters are a breach of your implied warranty
to build in a workmanlike manner depends on what's considered
good enough work in your community. If most crew chiefs or site
superintendents in your area would tell you to do it over, then
the work isn't good enough. But if those crew chiefs or site
supers would accept it, it is good enough, even if it's a long
way from perfect.
This doesn't mean that there's only one standard of good
miters in your community. What your local builders or crew
chiefs would accept in a high-end house may not be what they
would accept in a commercial establishment or a less expensive
If a dispute about a building's quality actually went to
court, the builder's attorney would bring in local people with
construction experience, such as builders or crew chiefs, to
testify -- not to how good the building in question is but to
what the standards are for that kind of building in that
community. Then the jury or judge would decide whether the
building in question meets that standard.
Many customers want better than good enough. If they do, they
should write that higher standard into the contract, because
there is no implied warranty to do a better job than what's
Quenda Behler Storyhas practiced and taught law for over 25
years and is the author of
Plain-English Legal Guide