Residential Disclosures From Sellers And Lenders Page 16
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100Residential Disclosures from Sellers
K. Bynum v. Prudential Residential Services, Ltd.
st
129 S.W.3d 781 (Tex. App. – Houston [1
Dist.] 2004,
petition for review filed). After moving in the buyers
noticed problems that were all allegedly due to a
faulty remodeling job.
The issue was whether
Prudential and the prior owners knew that the
contractor had done a poor job in remodeling the
home. The sale was “as is.”
The court held that the buyers could not have the
“as is” clause set aside on grounds that the parties
were not sophisticated, because the buyer was
represented by a real estate agent, the buyer had
bought and sold several properties, and the buyer was
a manager of a salvage company that sold goods “as
is.”
The court held that the buyers could not have the
“as is” clause set aside on grounds that the clause was
inconspicuous and part of the boiler-plate provisions
because the buyer was aware that he was purchasing
the property “as is.”
The evidence did not establish that Prudential or
the prior homeowners had actual knowledge that the
remodeling
was
performed
without
obtaining
necessary permits and therefore the evidence did not
establish any concealment or misrepresentation.
Because §5.008, Property Code, requires only that
the form be completed to the best of the seller’s belief
at the time the notice is completed and signed, the
buyer’s argument that the seller had an obligation to
provide continuing updates is without merit.
L. Sherman v. Elkowitz, 130 S.W.3d 316 (Tex.
th
App. – Houston [14
Dist.] 2004, no writ). Buyers
discovered defects after moving in.
The buyers
discovered that the sellers had sued their prior owners
for failing to disclose, allegedly, the same defects.
Neither the alleged defects nor the lawsuit were
disclosed. Buyers obtained a favorable verdict against
the sellers for failing to disclose a defect, but not
against the brokers.
As a matter of law, the prior lawsuit did not need
to be disclosed in the seller’s disclosure notice
because it was dismissed several years before the
sellers put the property on the market. The court held
that if the legislature intended for prior lawsuits to be
listed, it could have included a phrase indicating this.
In other parts of the form, the legislature asked for
disclosure of certain conditions that occurred in the
past (previous termites, previous flooding, etc.), but
not with prior lawsuits.
12
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