The following can be found on the back-side
Certificate of Possession and New Home Warranty.
1. In this New Home Warranty Certificate:
"Program" - means the New Home Warranty Program
of Manitoba Inc. "Builder" - means [NAME OF BUILDER], a registered
builder member of the Program
"Builder" - means [NAME OF BUILDER],
a registered builder member of the Program.
"home" - means [street address of home, city, province],
but does not include any pool, parking facility, common recreational
area, site grading and surface drainage, landscaping, shrubbery,
flowers, trees, patios, driveways, garage slabs or carport slabs,
sidewalks, retaining walls, wells and attached water systems, septic
tanks or fields, detached garages or detached carports, or outbuildings.
"homeowner" - means the registered legal owner(s)
of the home identified in this Warranty Certificate, and includes
the original purchaser(s) named herein and persons(s) who subsequently
become the registered legal owners of the home during the term of
the warranty described herein
"date of possession" - means [DATE OF POSSESSION].
2. The Builder warrants that the home was constructed in accordance
with the Manitoba Building Code and the building standards prescribed
by the municipality in which the home was constructed, as in effect
at the date of issuance of the building permit for construction
of the home. In the event that construction of the home fails to
comply with the Manitoba Building Code, or the building standards
prescribed by the municipality in which the home was constructed:
a) the Builder will repair defects in workmanship or materials in
the construction of the home, and will repair or replace defective
workmanship or materials supplied by the Builder where such defects
become apparent within one year from the date of possession; and
b) the Builder will repair major structural defects in the home
which become apparent within the five year period commencing on
the date of possession, all of which is subject to the provisions
of this Warranty Certificate and the following definitions:
"defects in workmanship or materials" - means any construction
covered under the terms of this Warranty Certificate and carried
out by the Builder which fails to comply with the Manitoba Building
Code, or the building standards of the local authority having jurisdiction,
as in effect at the date of issuance of the building permit; and
"major structural defects" - are defects in workmanship or
materials resulting in failure of the load-bearing portions of the
home. Specifically excluded as major structural defects are defects
in driveways, basement floors, garage floors, patios, sidewalks,
retaining walls, any concrete construction which is not load bearing,
or any defects not caused by the negligence of the Builder; and
"load bearing portion" - includes footings, pads, piles,
basement walls, grade beams, teleposts, columns, beams of timber
or steel, load bearing walls, floor joists, and roof trusses, provided
that they constitute an integral part of the home or attached garage.
3. In no circumstances does this Warranty require the Builder to
undertake or effect repairs to or in relation to:
a) seams in sheet vinyl, carpet, drywall surfaces;
b) reflection caused by gloss surfaces, revealing the outline of
sectional material below the surface of the material;
c) nail pops, seam lines and variations in drywall surfaces;
d) cracks in plaster, drywall, masonry, stucco and concrete (including
basement and garage floors) provided the cracks are within the normal
tolerances established by the Program from time to time;
e) shrinkage or warping of materials, provided the shrinkage or
warping is within the normal tolerances established by the Program
from time to time;
f) slab heaving and cracking;
g) soil subsidence of the land around the building or along utility
lines and sewer and water trenches, including subsidence or heaving
beneath the footings or piles of the home;
h) colour variations or surface defects in workmanship or materials
apparent and accepted by the homeowner at the date of possession;
i) damage arising from the failure of the homeowner to maintain
the home in accordance with maintenance schedules established by
the Program, including, but not limited to:
i) damage caused by or resulting from
dampness or condensation due to the failure of the homeowner to
maintain adequate ventilation in the home;
ii) damage arising from the failure of the homeowner
to maintain adequate drainage of surface water away from foundation
walls of the home and, in particular, from improper maintenance
and operation of a sump pump;
iii) damage arising from the failure of the homeowner
to adjust teleposts to allow for normal shrinkage of wooden structural
members and movement of concrete footings or pads.
j) defects in materials, appliances, design or workmanship supplied
by the homeowner, or defects in alterations or materials supplied
by the homeowner;
k) all matters directly or indirectly arising from or related to
environmentally harmful substances or hazards, deleterious substances,
mold or toxic materials on, in or about the residential unit regardless
of the party responsible.
4. The Builder's obligation to effect repairs pursuant to this Warranty
is conditional upon the prior approval of those repairs by the Program.
5. The Builder Warranty shall not include damage to the home arising
from or caused by flood, earthquakes, hail, windstorms or any other
acts of God, or other causes not directly related to workmanship
or materials provided or supplied by the Builder.
6. The Builder shall, to the extent permitted by manufacturers or
suppliers, assign to the homeowner the benefit of any guarantee
or warranty provided by any manufacturer or supplier of materials
used in the construction of the home.
7. In the event that:
a) the Builder fails to repair or replace defects in workmanship
or materials which become apparent within one year from the date
of possession; or
b) if the Builder fails to repair any major structural defects which
become apparent within five years from the date of possession.
The Program will undertake the necessary repairs or replacement,
subject to the limits of liability set out herein, it being understood
that the obligations of the Program hereunder shall not exceed the
obligations of the Builder under the Builder Warranty, and all of
which is subject to notice being given to the Program in the form
and within the time frames set out in this Warranty Certificate.
8. The total liability of the Program pursuant to this Warranty
Certificate shall not exceed:
a) $50,000 with respect to fulfillment of the Builder Warranty;
b) in the event that repairs to remedy defects in workmanship or
materials, or major structural defects, have previously been effected
to the home by or on behalf of the Builder, the potential liability
of the Program under this Warranty Certificate shall be reduced
by the value of those repairs; and
c) an allowance of up to $200.00 per day, with the total allowance
not to exceed a maximum of $3,000, may be paid by the Program for
the reasonable living expenses of a homeowner, if the homeowner
is required to vacate the home in order for the repair of a major
structural defect to be carried out, subject to the Program providing
written approval of the living expenses to the homeowner, prior
to the living expenses being incurred.
9. The warranty obligations of the Program as set out in this Warranty
Certificate do not take effect until the date of possession.
10. The obligations of the Program under this Warranty Certificate
shall not have any force and effect in the event that the homeowner
is withholding any monies due to the Builder in relation to any
workmanship or materials claimed by the homeowner to be defective
pursuant to the terms of this Warranty Certificate. In the event
that the homeowner is withholding any such monies, those monies
shall be paid unconditionally at the request and direction of the
Program before the Program will be required to undertake any of
its obligations under this Warranty Certificate.
11. There are no warranties or guarantees given by the Builder that
are binding upon the Program except as set out in this Warranty
LIMITATIONS OF WARRANTY
12. The warranties described in this Warranty Certificate are limited
to the repair of defects in workmanship or materials, and damage
caused to the home by those defects. Neither the Builder nor the
Program shall have any liability other than to repair the said defects
and damage caused by those defects. In particular, the Builder and
the Program shall not in any way, directly or indirectly, be liable
for any physical injury or damage to a person or persons, or to
property other than the home.
13. The Builder and the Program are not responsible for moving or
removing any chattels or personal property of the homeowner in order
to allow repairs to be carried out to the home under the terms of
this Warranty Certificate.
14. The warranties contained herein shall not apply to or include
defects in or damage to materials, construction or workmanship supplied
or carried out by the homeowner, or to any defects or damage resulting
from or caused by materials, construction or workmanship supplied
or carried out by the homeowner.
15. In the event the homeowner ceases to occupy the home as a principal
residence and allows the home to be used for rental purposes, the
warranty described in paragraph 2(a) shall terminate and become
null and void, provided however that such event shall not invalidate
or terminate the major structural defect warranty described in paragraph
TRANSFER OF WARRANTY
16. In the event the original homeowner sells the home and transfers
this Warranty Certificate to a subsequent homeowner, all the obligations
of the original homeowner and the terms of this Warranty Certificate
shall be binding upon any subsequent homeowner. Any prior acts,
omissions, defaults or waivers of the original homeowner shall be
binding upon the subsequent homeowner. In the event the home is
sold further, this clause shall apply to any subsequent homeowners
without limitation as if the homeowner from whom the home was purchased
was the original homeowner.
HOMEOWNER OBLIGATIONS RE POSSESSION CERTIFICATE
17. The homeowner shall sign a possession certificate prior to taking
possession of the home, or when so required by the Program. In the
event the homeowner fails or refuses to sign a possession certificate,
the Program may fix a date of possession which shall be deemed binding
on the homeowner, the Builder and the Program.
18. The homeowner shall notify the Builder and the Program in writing,
no later than one year from the date of possession, of any defect
in workmanship or materials of the construction of the home which
the homeowner believes the Builder has warranted under this Warranty
19. The homeowner shall immediately notify the Builder and the Program
in writing, and in any event no later than thirty days after the
homeowner becomes aware, of any alleged major structural defect.
Without limiting the generality of the foregoing, the Program must
receive written notice of alleged major structural defects no later
than five years from the date of possession.
20. No repairs or alterations to any alleged defects shall be commenced
by the homeowner without prior written notice of the alleged defect
to the Builder and the Program as required herein, or without the
homeowner first having given reasonable opportunity to:
a) allow the Builder and the Program to inspect the alleged defect;
b) permit the Builder to provide its position with respect to the
repair of the alleged defect.
21. The Builder, the Program, conciliators appointed by the Program,
or their representatives shall be entitled to complete access to
the home during normal business hours for the purposes of carrying
out inspections or effecting repairs.
22. The homeowner shall refer any dispute with the Builder concerning
the fulfillment of warranty obligations as set out in paragraph
2(a) above to conciliation in accordance with the conciliation procedure
described herein before pursuing any other recourse or effecting
any repairs to remedy any alleged defects.
23. The homeowner shall refer any other dispute with the Builder
concerning the fulfillment of warranty obligations to the Program
in accordance with the procedure described herein before pursuing
any other recourse or effecting any repairs to remedy any alleged
defects. The dispute shall be referred to the Program in writing
not later than thirty days following the fifth anniversary of the
date of possession. The Program will thereafter provide its decision
as to responsibility for the repair of the alleged defects, which
decision shall be final and binding on the Builder and the homeowner.
24. In the event of a dispute between the Builder and the homeowner
concerning the fulfillment of warranty obligations as set out in
clause 2(a) above, either the Builder or the Homeowner may refer
the dispute to the Program for conciliation by submitting a written
request for conciliation to the Program, together with the approved
conciliation application fee as determined by the Program from time
to time. A written request for conciliation must be received by
the Program not later than sixty days following the first anniversary
of the date of possession.
25. Upon receipt of a written request for conciliation together
with the approved conciliation application fee, the Program shall
appoint a conciliator. The conciliator shall make such inspections
of the home and receive information from the homeowner and the Builder
as, in the opinion of the conciliator, may be necessary to enable
the conciliator to render a decision as to the rights and obligations
of the Builder or the homeowner pursuant to this Warranty Certificate.
26. Within thirty days of the completion of the inspection process
by the conciliator, the Program shall cause the conciliator to provide
the homeowner and the Builder with a written decision as to the
rights and obligations of the Builder or the homeowner. The decision
of the conciliator will set out the remedial work, if any, required
to settle the dispute in accordance with the terms of the warranties
27. The decision of the conciliator shall be final and binding on
the Builder, the Program and the homeowner.
TERMINATION OF WARRANTY
28. The Program Warranty shall, at the sole election of the Program,
terminate and become null and void if:
a) the homeowner does not maintain the new home in accordance with
the Program Maintenance Schedule in effect during the term of the
warranties described herein; or
b) if the homeowner fails to maintain adequate positive drainage
of surface water away from the foundation walls of the home; or
c) the home is not used as a principal residence by the homeowner
or lessee of the homeowner; or
d) the home is moved to a new location; or
e) the homeowner is in default of the Homeowner Obligations set
out in paragraph 17 above; or
f) the homeowner fails to comply with the Claims and Conciliation
Procedures set out above.
IMPORTANT NOTICE TO HOMEOWNERS: In accordance with paragraphs
22, 23 and 28(f) of this Warranty Certificate, the Program Warranty
described herein may be terminated and become null and void at the
sole election of the Program in the event that a homeowner commences
litigation against the Builder or the Program without first pursuing
the recourse made available under the terms of this Warranty Certificate.