Physical Damage Requirement for Louisiana New Home Warranty Act Claim


I’ve heard that buyers of a home must establish “Physical Damage” to the home in order to be successful in their claims under the Louisiana New Home Warranty Act.  Is this correct and, if so, what constitutes “Physical Damage”?


There are a couple of cases that help explain what constitutes physical damage (and what doesn’t constitute physical damage).

In Bynog v. M.R.L., LLC, 05-122; La. App. 3 Cir. (6/1/05); 903 So. 2d 1197, the buyers of a home alleged that caulking and painting on the outside of the house was improperly done and insects were getting into the house.  The defendant builder responded that faulty paint does not constitute “physical damage” to the home.  The Court disagreed.

According to the Louisiana 3rd Circuit Court of Appeals, a home does not have to be “falling down” for physical damage to be present.  Rather, faulty paint would be considered “physical damage.”

In Gines v. D.R. Horton, Inc., U.S. App. 5 Cir. (10/27/12); 699 F. 3d 812, buyers alleged the capacity of the air conditioning system installed by the builder was not large enough to maintain an appropriate temperature in the home.  The home continued to run “hot” in the summer.

The Court held that buyers failed to prove that faulty air conditioning system resulted in actual physical damage to the home

If you’re like me, it’s very difficult to determine how faulty paint constitutes physical damage but a faulty air conditioning unit does not!

A couple of things to remember from this email:

  1. Just remember that physical damage must be present in order for the buyer to possibly have a claim under the Louisiana New Home Warranty Act.
  2. Recommend the buyer speak with an attorney regarding whether the particular issue with their house constitutes physical damage.


For any questions associated with this email, please contact me at

H.L. “Rye” Tuten, III, is a Title Attorney/Real Estate Closing Attorney and Owner of Tuten Title & Escrow, LLC. Formerly assigned by RICE Insurance to defend real estate agents throughout Acadiana, much of his more than nine years’ litigation experience is with real estate concerns.

The information contained herein is simply for informational purposes only and not intended to provide legal advice or create an attorney-client relationship.