In reviewing myriad home purchase agreements over the years, the question usually arises whether the particular agreement requires arbitration.  Oftentimes, the agreement to arbitrate is right in the home purchase agreement itself.  However, sometimes the builder in question will also offer a "Limited Warranty" to the homeowner and this warranty document will purportedly contain the agreement to arbitrate. 

When the agreement to arbitrate is contained within the Limited Warranty, it is usually suspect. Why? 

In short, the way that such Limited Warranties are typically presented and provided to homeowners makes it difficult to show that the homeowner had the opportunity to review and agree to such an arbitration agreement.  There are issues here both as to contract formation and, then, as to contract interpretation. 

For instance, if the agreement to arbitrate is contained in the Limited Warranty, is it signed?  If not, are there indicators that the homeowner agreed to arbitrate?  The answer to these questions is usually no.  Next, on a more practical level, such warrranties are typically provided to homeowners, if at all, during closing ... along with a blizzard of paper.  In addition, there is usually little or no evidence to establish the the homeowner was provided the warranty before the sale was consummated. 

The punchline: If your agreement to arbitrate is contained only within the Limited Warranty, the odds are you have no agreement to arbitrate.