This article Reprinted from Western Roofing magazine, March/April 2007, Volume 30, number 2

Are Roofing Shingles “Consumer Products?”

The California Court of Appeal for the 6th District Answered “Maybe”

by Sam K. Abdulaziz, attorney, Abdulaziz, Grossbart & Rudman

(Editor's Note: Sam Abdulaziz is an attorney who specializes in construction law. He is known for his legal achievements and litigation on behalf of contractors. The aid and advice Abdulaziz offers has been sought after by industry trade associations as well as the California Contractors State License Board. He has lectured extensively and written numerous articles for consumer publications and trade journals. Abdulaziz was honored by his peers and was named Lawyer of the Year by the Constitutional Rights Foundation. Abdulaziz may be reached at (818) 760-2000.)

An owner hired a roofing company to reroof his family home. The shingles were chosen by the owner. Sometime later, the owner observed cracks in several shingles. He then filed a complaint alleging several causes of action including breach of warranty under the Magnuson-Moss Warranty – Federal Trade Commission Improvement Act (The Act).

It is significant that the damages that may be awarded may be different under a straight breach of contract than under the Act.

The defendant offered a settlement but that settlement offer was rejected.

The manufacturer of the shingles argued that because the contract was for a “lump sum” with no separate charge for materials and the shingles were incorporated into a dwelling the shingles were not consumer goods under the act.

“Unlike Song-Beverly, which allows only a buyer of consumer goods to bring an action, Magnuson-Moss permits a “consumer” to bring an action for damages and other relief when a warrantor breaches its obligations under a warranty or under the act. The term consumer includes not only a “buyer (other than for purposes of resale) of any consumer product,” but also any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contract) the obligations of the warranty (or service contract).”

Magnuson-Moss defines a “consumer product” as “any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is attached or installed).” This definition includes property which is intended to be attached or installed. This means that a product is a consumer product if the use of the that type of product is not uncommon.

Any ambiguity will be resolved in favor or coverage. The definition of “Consumer product” limits the applicability of the Act to personal property, including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed. This provision brings under the Act separate items of equipment attached to real property, such as air conditioners, furnaces, and water heaters. State law may classify many such products as fixtures to, and therefore a part of, realty. The statutory definition is designed to bring such products under the Act regardless of whether that may be considered fixtures under state law. The coverage of building materials, which are not separate items of equipment, is based on the nature of the purchase transaction. An analysis of the transaction will determine whether the goods are real or personal property. The construction of a consumer dwelling are all consumer products when sold over the counter as by hardware and building supply retailers.”

Therefore the shingles were consumer goods covered by the Federal Magnuson-Moss. •••