Residential Disclosures From Sellers And Lenders Page 15
ADVERTISEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100Residential Disclosures from Sellers
discussed the report with the owners but the owners
seller’s disclosure notice that did not indicate any
did not obtain a copy.
The court found the new
defects in the foundation or any awareness of a previous
owners knew the foundation was defective, told the
structural repair. Buyers later found a crack in the
subsequent purchaser that the house was in
foundation but took no action to mitigate the damage.
“excellent” condition, and failed to disclose the
The seller’s admitted to having previously repaired a
defective foundation.
The “as is” provision was
crack in the foundation, but did not disclose the prior
invalid as a matter of law.
repair in the seller’s disclosure notice believing it had
been repaired. The seller’s failed to disclose a previous
E. Kessler v. Fanning, 953 S.W. 2d 515 (Tex.
repair as required under §5.008, Property Code and
App. – Ft. Worth 1997, no writ. A seller answered
therefore were liable to the buyers for the cost to repair.
“no” to questions in the seller’s disclosure notice
Although the jury proportionately assigned 93% of
related to improper drainage. In an oral conversation
the damages to the buyer for failing to mitigate, the
with the buyer, the seller acknowledged that he knew
court held that proportionate responsibility does not
about a drainage problem, but later stated that it was
apply to statutory fraud. Damages that were awarded
not a problem.
were limited to the cost of repair plus costs.
Courts consider three factors in determining
Rescission was not proper because the plaintiff
whether a statement is opinion or misrepresentation:
failed to tender the value that they obtained from using
(1) whether the statement is specific or vague; (2) the
the property for the time between the purchase and trial.
comparative knowledge of the buyer and seller; and
(3) whether the representation concerns past or current
I. Robbins v. Capozzi, 100 S.W.3d 18 (Tex. App. –
event/condition or a future event/condition.
Tyler 2002, no writ). The buyer received a seller’s
A
seller
is
liable
for
affirmative
disclosure notice stating that the garage was in
misrepresentations; the seller has a duty to know
“working condition” and had “no known defects.” The
whether an affirmative statement is true. Sellers do
buyer had never tried to park the car in the garage
not have a duty to disclose material facts that merely
before closing. After closing, the buyer discovered that
should have been known.
she could not maneuver her vehicle into the garage
because of the configuration of the drive and garage.
F. Erwin v. Smiley, 975 S.W.2d 335 (Tex. App. –
The
court
held
that
seller
made
no
Eastland 1998, writ denied). The seller told buyer
misrepresentation of the garage’s condition. The seller
about previous termites but problem had been
had been able to park her car in the garage (albeit that
remedied. The buyer inspected before entering into a
her car was considerably smaller). The court found that
contract. The parties signed an “as-is” contract. After
“inconvenience” is not a defect. The court held that the
closing, the buyer discovered termites.
seller had no duty to disclose material facts which
The appellate court held that the parties were
would be discoverable by a buyer in the exercise of
similarly situated, the sale was arms-length, both
ordinary care and due diligence.
parties were represented, and the “as is” clause was
freely negotiated. The “as is” clause negated seller’s
J. Branton v. Wood, 100 S.W.3d 645 (Tex. App. –
actions as the producing cause.
Corpus Christi 2003, n.w.h.). Buyers bought a home
that previous flooded. The home is located adjacent to
G. Fernandez v. Schultz, 15 S.W.3d 648 (Tex.
the Guadalupe River. In a later flood, the home washed
App. – Dallas 2000, no writ). The court found that
off its foundation and smashed into some trees. The
there was sufficient circumstantial evidence to
base plate of the foundation had rotted, allegedly from
establish that the seller had knowledge regarding
prior flood damage. In the seller’s disclosure notice the
termite problems. The seller was in the business of
seller’s disclosed the prior flooding and stated that
buying and selling houses and the court held him to be
“repairs were made totally after flooding occurred.” No
knowledgeable about signs of termite problems and
evidence summary judgment was awarded to the sellers.
therefore, the seller did and should have recognized
The appellate court affirmed.
the signs. The buyer’s inspection, even if deficient,
The court held that the buyer had to prove that the
did not relieve the seller of his liability. There can be
bottom plates were rotten because of damage sustained
more than one producing cause of injury to a
in the prior flood and that the damage was not repaired
consumer under the DTPA. The court reasoned that if
or that they were not repaired after the previous flood.
the seller had disclosed the termite problems on the
The report failed to discount other plausible sources that
seller’s disclosure form, the buyer’s inspector would
may have caused the rot. Without such evidence, the
have inspected for termites more completely.
court could not conclude that the statements were false,
misleading, or deceptive.
H. Davis v. Estridge, 85 S.W.3d 308 (Tex. App. –
Tyler 2001, writ denied).
Seller’s gave buyer a
11
ADVERTISEMENT
0 votes
Related Articles
Related forms
Form St-55 - Joint Election Between Vendor And Lender To Designate Entitlement To Claim Sales Tax Bad Debt Refund Or Credit
Financial
Form St-55 - Joint Election Between Vendor And Lender To Designate Entitlement To Claim Sales Tax Bad Debt Refund Or Credit
Financial
Form Il-516-i And Form Il-516-b - Pass-through Prepayment Voucher (for Withholding From Individuals And Estates)/ Pass-through Prepayment Voucher (for Withholding From Corporations, Partnerships, And Trusts) - 2015
Financial
Related Categories
Parent category: Legal