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Selmon v. J. Mariano Construction, Inc.

CAF-3939-99 (Department of Community Affairs OAL 2003) (Unpublished)

CONTRACTORS; NEW HOME WARRANTY—It is not necessary to prove a total failure of a heating system to come within the two year coverage of the New Home Warranty Program.

A homeowner brought a series of claims against a builder under the New Home Warranty Program, claiming that a heating system was defective because it failed to deliver adequate heat to one portion of the house. A heating system must be capable of producing an inside temperature of 70 degrees in the house. If there is a problem with a heating system, the homeowner must address it with the builder within the first year after the house is completed. The time period for bringing a claim under the Program begins to run on the date the certificate of occupancy is issued by the municipality. An Administrative Law Judge rejected the claim because it was made more than one year after the house was built. The homeowner then brought another claim against the builder based on the same set of facts. The homeowner claimed that there was a failure of the heating system, a claim that may be brought during the first two years after the house is completed. The Administrative Law Judge rejected the homeowner’s claim, finding that, in order to be a defect covered under the new homeowner warranty, there must be a total failure of the heating system. Since only a portion of the house was not adequately heated, the judge took the view that it was a defect that needed to be addressed within one year. The Commissioner of the Department of Community Affairs disagreed with the Administrative Law Judge’s conclusion that there must be a total failure of the heating system in order to have a two year claim period. Nevertheless, the Commissioner affirmed the ruling against the homeowner, finding that the homeowner did not establish that the builder failed to correct the problem.


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