Can a builder waive or disclaim the implied warranty in Arizona?

The Arizona Supreme Court settled this in Zambrano v. M & RC II LLC (2022), holding that "public policy prohibits enforcement of the disclaimer and waiver." So a clause in your purchase agreement that says you give up all implied warranty of workmanship and habitability protections, even one swapped in for a written express warranty, is not enforceable in Arizona. The protection that the law builds into every home construction contract stays with you no matter what the fine print says. This is one of the strongest buyer protections in Arizona home building, and it is the reason a builder cannot contract its way out of building you a sound, livable home.

Builders and their lawyers have tried for years to draft around this warranty. Arizona courts look hard at those clauses and, as of 2022, the answer is clear. Here is what the warranty is, what the courts actually held, and what it means for the contract you sign.

What the implied warranty is and why it matters

The implied warranty of workmanship and habitability is a promise Arizona law writes into every home construction contract: the builder warrants the work was done in a workmanlike manner and the home is habitable, meaning safe and fit to live in. You do not have to negotiate for it. The law imposes it by the act of building the home. It covers hidden latent defects that a normal walkthrough would not catch, like a cracked footing, framing built out of standard, or a buried drain line that leaks. For the full background, see Arizona's implied warranty of workmanship and habitability.

This warranty exists for a simple reason. A home is the biggest purchase most people make. A buyer cannot see inside the walls or under the slab the way a builder can. The Arizona Supreme Court said in Zambrano that the implied warranty "serves to protect homebuyers and the public at large." So the question of whether a builder can simply delete it has come up again and again.

The warranty also passes to later buyers and runs alongside any written warranty. A written builder warranty often covers only the first owner and expires on a set schedule. The implied warranty follows the home and the hidden defect within the legal deadlines. That makes it the legal floor under whatever the paperwork says.

What Arizona courts actually held about waivers

Arizona courts have held that a builder cannot disclaim the implied warranty and a buyer cannot waive it, full stop. The leading case is Zambrano v. M & RC II LLC. Tina Zambrano signed a preprinted purchase agreement for a new home. The contract gave her a "Home Builder's Limited Warranty" and, in exchange, tried to make her give up the implied warranty. When a defect dispute arose, the builder pointed to that waiver. The courts rejected it.

The Arizona Court of Appeals ruled in 2021 that "a buyer cannot waive, and a builder cannot disclaim, the implied warranty of workmanship and habitability, even if the builder provides the buyer an express warranty." The Arizona Supreme Court took the case and affirmed in 2022. Its holding was direct: "We hold public policy prohibits enforcement of the disclaimer and waiver."

The court's reasoning helps explain the rule. Arizona usually honors freedom of contract. A contract term is enforced unless it is "contrary to an otherwise identifiable public policy that clearly outweighs any interests in the term's enforcement." Here the public policy behind the implied warranty wins. A swapped-in express warranty is not a fair trade. A builder can write that express warranty to be narrow, short, and full of exclusions. That leaves the buyer worse off. So the waiver fails even when the contract is clear and the buyer signed it.

Why a clear, signed waiver still does not work

A waiver of the implied warranty fails in Arizona even when the language is clear and unambiguous, because the problem is not how the clause is written, it is that the law will not enforce it at all. In many areas of contract law, a disclaimer of warranties can be valid if it is conspicuous, known to the buyer, and specifically bargained for. Arizona discussed that approach in Zambrano, noting other states allow a disclaimer that meets such tests. Arizona rejected that path for the home-construction implied warranty.

The reason is the unique stakes of a home. The Supreme Court said an implied home warranty "is unique in protecting against financial" harm in a way warranties on ordinary consumer goods are not. The rule that lets you waive the warranty on a toaster does not carry over to a house. The court also pointed to the legislature's policy of holding builders to good workmanship. So even a bold, all-caps, separately initialed clause does not bind you. The clarity of the clause is beside the point when public policy bars enforcing it.

This is different from how a written warranty's own terms work. A builder can still set the terms, tiers, and durations of the express warranty it offers. What it cannot do is use that express warranty, or any clause, to strip away the implied warranty that Arizona law guarantees. If your contract claims to waive or disclaim all implied warranties, treat that clause as unenforceable in Arizona, and have a construction attorney confirm it before you rely on or worry about it.

What this means for your contract and your claim

Because the implied warranty cannot be waived, you keep it regardless of the contract language, and you have real deadlines and remedies if a hidden defect appears. The most important deadline is Arizona's statute of repose in A.R.S. 12-552. That law expressly covers "any action based on implied warranty arising out of the contract or the construction," and it generally bars a claim more than eight years after substantial completion of the home, with a narrow extension to nine years for a defect first discovered in year eight. A separate statute of limitations also runs from when you discover, or reasonably should have discovered, the defect. Two clocks apply, so do not sit on a problem. See Arizona's statute of repose for construction defects.

You also have more than one track if a defect surfaces:

• Sue on the implied warranty. It is a contract claim built into your construction and sale agreement, and it survives a waiver clause. The Recovery Fund is "no substitute for enforcing the implied warranty," the Supreme Court noted, since that fund caps recovery at $30,000 and excludes consequential damages.
• File with the Registrar of Contractors. Under A.R.S. 32-1154, the ROC can discipline a licensed builder for failing "to perform work in a professional and workmanlike manner or in accordance with any applicable building codes."
• Follow the right-to-repair steps first. If the builder is the seller, Arizona's notice-and-repair process applies before you sue. See how Arizona's notice and right-to-repair process works.

The practical takeaway is simple. Do not let a waiver clause scare you out of a valid claim, and do not assume a written warranty is the only protection you have. Because this is a legal claim with hard deadlines and real money at stake, document the defect in writing and have a construction attorney review your facts and your contract before you act.

The Jematell Homes approach

Transparency, a real license, and a written scope are how we work. Reach out and we will talk through how this applies to your specific lot and plan.

Sources

• Zambrano v. M & RC II LLC, No. CV-21-0205-PR (Arizona Supreme Court, 2022)
• Zambrano v. M & RC II LLC, 1 CA-CV 19-0635 (Arizona Court of Appeals, 2021)
• A.R.S. 12-552 (Statute of repose; actions based on implied warranty arising out of construction)
• A.R.S. 32-1154 (ROC grounds to discipline a builder for unworkmanlike construction)