DocketNumber: No. CV 97 0073462 S
Citation Numbers: 1999 Conn. Super. Ct. 13959
Judges: SHEEDY, JUDGE.
Filed Date: 10/22/1999
Status: Non-Precedential
Modified Date: 4/17/2021
The only issue presented for this court's determination is whether the next door neighbor's statement to the defendant agent, Beth Nelson, at an open house held weeks prior to the plaintiffs' contracting to purchase this home, required the agent to disclose the same to the plaintiffs or their agent. The neighbor testified he had become aware of an odor3 in 1994. On cross-examination, the neighbor indicated he told Ms. Nelson he believed there was a problem with the septic system. Ms. CT Page 13960 Nelson testified he said, "You know, there could be some septic problem here." There is no question the agent indicated to him she had no knowledge of the problem. The neighbor recalled pointing out the area of the septic system through a window and seeing an area of high grass in that area; the defendant had no recollection of his doing that. Her testimony, however, was that she called the property owner, who resided in California, advised him of the neighbor's comment, and was told by the owner, "There's not a problem with the septic system." He also told her the neighbor was always complaining because of the owner's male friends who were renting the house. Ms. Nelson also advised Sue Ellen Stavrard, the buyer's agent, the buyers needed to obtain full inspections.
The evidence clearly established defendant Nelson never had any personal contact with the plaintiffs, never spoke to them prior to the closing, and was not present at either the home inspection or the inspection/appraisal of the septic system done after the closing. As the agent for the seller, her function consisted primarily of having the property listed, overseeing its marketing, and arranging for the advertising. There was no evidence Ms. Nelson made any representations to the plaintiffs with regard to the septic systems. Aside from the neighbor's comment, she had no knowledge of the condition of the system other than having been told by the owner the system was eleven (11) years old4 and that there was no problem with it.
The plaintiffs' complaint does not allege misrepresentation or concealment. Their cause of action is based on nondisclosure. They claim the defendant agent and her employer "breached their duty to the plaintiffs in failing to disclose their knowledge of said septic problems. . . ." Paragraph 7 of First Count. The plaintiffs allege Restatement 2nd, Torts, Section 551(2)(e) establishes the defendants' liability. It reads:
One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated facts basic to the transaction if he knows that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts (emphasis added).
Comment j to this section states, "A basic fact is a fact that is assumed by the parties as a basis for the transaction CT Page 13961 itself. . . . It is a fact that goes to the essence of the transaction." It continues:
Other facts may serve as important and persuasive inducements to enter into the transaction but not go to its essence. These facts may be material, but they are not basic. If the parties expressly or impliedly place the risk as to the existence of a fact on one party or the law places it there by custom or otherwise the other party has no duty of disclosure. Id. at p. 123.
Whether there is a duty to disclose is always a matter for the court's determination.5 Under this section of the Restatement, however, a predicate to the imposition of liability is that the fact not disclosed be a fact which goes to the very essence of the transaction. Though the parties do not address the distinction between a "basic" fact and a "material" fact, this court concludes the failure to disclose a suspected septic problem is a basic fact in view of the testimony of Mrs. LaCasse that she and her husband would not have bought the house had they been told. Yet, even so, Comment j concludes there is no duty of disclosure if the parties expressly or impliedly place the risk regarding the existence of that fact (here, a potential septic problem) on one party or if the law places it on one party by custom or otherwise. See also Duksa v. Middletown,
In the instant case, there was no expert testimony to establish the standard of care for realtors required disclosure under these circumstances. Nor was the relationship between the parties such that would require disclosure. The only evidence on this point came from Ms. Nelson, who testified that, as the seller's agent, it would not have been proper to disclose any fact directly to the buyers and that, had she felt a duty to disclose the neighbor's comment, she would have disclosed to the selling agent. There was, however, in the Offer to Purchase (P. 2 of Plaintiffs' Exhibit #3) the following language regarding inspection:
The Buyer agrees that he has examined the premises and that he is fully satisfied with the physical condition and that neither the seller nor any representative of the seller has made any representation upon which the Buyer relies, except as herein expressly set forth.
Almost precisely the same language was considered by this state's CT Page 13962 Supreme Court in Gibson v. Capano,
Plaintiffs next rely upon Section
It cannot therefore be concluded the listing agent had a duty to do more than to canvass the owner and advise the buyers' agent of their need to do full inspections. Our appellate court recently stated that, even where a vendor sells a vehicle it knows to have been involved in an accident and to have been subsequently repaired, "the silence of a vendor with reference to facts affecting the value or desirability of property sold cannot give rise to an action by the vendor to set aside the transaction CT Page 13963 as fraudulent." Kenney v. Healey Ford — Lincoln —Mercury, Inc.,
The plaintiffs have not established misrepresentation, concealment, or fraudulent nondisclosure, or otherwise actionable nondisclosure. Where, as here, the reliance disclaimer clause of the Offer To Purchase places the burden upon the plaintiffs to obtain inspections and where, as here, the home inspection report recommended the buyers have the septic system evaluated prior to purchase,10 which evaluation was not performed, the risk of a failed system is placed squarely on the buyers.
Accordingly, judgment shall enter for the defendant agent and agency.
Sheedy, J.