Alternative claims of breach of implied warranties and covenants under both breach of contract and negligence.

Theoretically, in a construction situation, in addition to a claim for contractual breach of implied warranty of correctness of plans and specifications, breach of implied covenant to perform work in a good and competent manner, and/or breach of implied covenant to provide necessary items within owner’s control, (1) is it possible to also claim negligent violation of these same implied warranties and covenants? I have seen a parallel where a tenant can claim a breach of rental agreement through breach of the implied warranty of habitability and, in addition, negligent breach of implied warranty of habitability. The same goes for the implied covenant of quiet enjoyment.

San Diego, CA -

Attorney Answers (2)

Deborah Barron

Deborah Barron

Business Attorney - Sacramento, CA

A construction defect complaint usually contains many different causes of action and theories of recovery. There are different product liability causes of action that apply to devleopers of homes in subdivisions that do not apply to a contractor who remodels or builds one home. In both you can plead causes of action for express warranty based on written warranties and a cause of action for implied warranty which is not in writing but goes under the general principal that construction will be fit for its intended purpose and if it is defective, it is warranted for repair or recovery of the cost of repair under the implied warranty theory. Further questions please email me at or call 800-529-5908 (800-LAW-5908). Visit my real estate website at

Pamela Koslyn

Pamela Koslyn

Business Attorney - Los Angeles, CA

In general you may have both contract and tort claims and remedies, and you may have 2 types of claims, but I wouldn't be so quick to see parallels between tenancy claims and construction claims. They're not at all the same thing and they're rarely implicated in the same fact pattern.

Your situation is complex and not really suited to an Avvo Q&A, and given that your written agreenments presumably have attorney's fees clauses, you need to consult a lawyer to discuss your legal as well as available administrative remedies through the CSLB and the DFEH, respectively.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to... more

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