THE WARRANTOR: Weather damage and the warranty program

By Howard Bogach TarionAs the CEO of Tarion, I am pleased to have this opportunity to share insights and advice about the Ontario New Home Warranty Plan and to explore issues that affect the building industry. In this, my first column, I’d like to talk about the weather and how it affects warranty claims.This past summer, we experienced a lot of adverse weather conditions – including strong winds and heavy rainfall – that affected some newly built homes in the province. No doubt, we can expect more inclement weather this fall and winter.When we experience extreme weather, it’s not unusual for homeowners and builders alike to call Tarion asking whether storm-related damage is covered under the warranty plan or is considered an “act of God” and excluded from coverage. So, this is a good time to explain the “act of God” exclusion and a builder’s responsibilities when damage occurs after a weather event.As a starting point, the Ontario New Home Warranties Plan Act states that warranties do not apply to damage resulting from an act of God. An act of God is a natural event that is unexpected and unavoidable and causes damage that is beyond the control of the builder. Examples include tornadoes, earthquakes and extreme winds.However, an important point is that the act of God exclusion to the warranties does not include weather events that are typical to our climate, such as ice, snow, high winds and heavy rains. The exclusion only applies to extraordinary occurrences or conditions of nature that could not have been reasonably foreseen or guarded against.For example, a high wind is not an act of God unless it is of such exceptional strength that no builder in Ontario could be reasonably expected to anticipate its force. Homes that are designed and built to Ontario Building Code standards should withstand Ontario’s normal weather conditions, however unpleasant. Builders therefore shouldn’t assume that the act of God exclusion applies when a homeowner reports damage after a weather event. The damage must be inspected and assessed to determine whether there is a defect in the builder’s work or materials, a violation of the Ontario Building Code, or some other defect covered by the warranties.Moreover, the onus is on the builder to prove that the act of God exclusion applies to the damage incurred. For example, if roof shingles on a newly built home flew off on a windy day, the builder would be required to replace the shingles unless the builder can prove the shingles were installed properly and became detached only because there was an extraordinary wind.I hope this helps clarify the act of God exclusion to the new home warranty plan.If you have questions about weather events or any other warranty-related matter, be sure to connect with your Stakeholder Relations Representative or email stakeholderrelations@tarion.comHoward Bogach is CEO of the Tarion Warranty Corp. Tarion.com