Conahan v. Fisher ( 1990 )

186 Mich. App. 48 (1990) 463 N.W.2d 118

CONAHAN
v.
FISHER

Docket No. 115221.

Michigan Court of Appeals.

Decided June 8, 1990.

R. Reid Krinock, for Hugh and Patricia Conahan.

Lavan & Hegarty (by Calvin Gatesman), for Duard and Dorothy Fisher.

William M. Schlecte & Associates, P.C. (by William M. Schlecte), for Preview Properties, Inc., Michael Scholtz and Carol Stanley.

Before: GILLIS, P.J., and BRENNAN and REILLY, JJ.

PER CURIAM.

Plaintiffs appeal as of right the January 31, 1989, order granting defendants' motions for summary disposition. We affirm. Plaintiffs sought damages for termite infestation repairs to the house they purchased "as is" from defendants Dorothy and Duard Fisher. Plaintiffs alleged that the sellers should have warned them of the termite problem either directly or through their real estate agents, defendants Carol Stanley and Michael C. Scholtz of defendant Preview Properties, Inc.

Plaintiffs argue that the trial court erred in granting summary disposition to the sellers since there were disputed issues of material fact as to the sellers' knowledge of the termite problem and because the sellers had a duty to tell plaintiffs of a previous termite problem.

Generally, the buyer bears the risk of loss under an "as is" contract unless the seller fails to disclose concealed defects known to him. Farm Bureau Mutual Ins Co v Wood, 165 Mich App 9, 16; 418 NW2d 408 (1987). Caveat emptor prevails in land sales, and the vendor, with two exceptions, is not liable for any harm due to defects existing at the time of sale. Id. The first exception, which is arguably applicable, is that the vendor has a duty to disclose to the purchaser any concealed condition known to him which involves an unreasonable danger. Id.

Here, the purchasers viewed the house themselves and had a professional inspection of the house performed which revealed no termite infestation. However, in a letter attached to plaintiffs' response to defendants' motion for summary disposition, plaintiffs' termite expert stated that "a competent inspector qualified to make recommendations regarding structural soundness for residences should reasonably have been expected to have discovered evidence of active termites in that home...." Thus, the condition was not concealed. It was on this basis that the trial court granted summary disposition and we agree. Plaintiffs' claim did not fall within the exception to the caveat emptor rule since the defect was not concealed. Therefore, we find defendants had no duty to disclose the termite problem and the trial court properly granted summary disposition to defendants pursuant to MCR 2.116(C)(10). Gruett v Total Petroleum, Inc, 182 Mich App 301, 304-305; 451 NW2d 608 (1990).

Affirmed.