The amount of property to be transferred, usually described by acres or square feet. This amount could also be described by boundary lines.
Perfect v. McAndrew
798 N.E.2d 470 (Ind. App. 2003).
The Perfects lost and appealed.
Whether all the terms of the contract were satisfied to justify specific performance of the sale of the land.
The trial court did not error, affirmed.
The Perfects (sellers) entered into a contract for sale of their property to McAndrew (buyer). Importantly, the Perfects believed they owned 81.1 acres of land and the description of the property said that the Perfects were selling those 81.1 acres. The parties entered into an agreement. After the survey was conducted, it was discovered that the land was actually 96.3 acres. The Perfects had no desire to give away an extra 15 acres and drafted up new proposals. However, these were all denied. When McAndrew failed to provide notice of obtaining a loan (a technicality in the contract), the Perfect’s sought to terminate. Consequently, McAndrew sued for specific performance.
The land was to be purchased in gross (as a whole) rather than a price per acre. This was shown by the ambiguous language of the contract supplemented by the actions of the parties. Nobody discussed the acreage until the survey. The mention of the acreage in the sale was merely to add to the description of the land. The lack of the phrase “more or less” is not deterministic of whether the property is purchased in gross or as a price per unit.
If the lot is purchased in gross, then the buyer takes the risk of the quantity of the property, unless there is proof that the seller used fraud, concealment, or misrepresentation.
Safety, structural soundness, environmental condition of the land, condition of operating systems, disclosing inaccurate information, disclosing material defects, etc.
Duty to Disclose Material Defects
Material defects could be physical in nature, but recent cases have shown that stigma associated with the property could also lead to a material defect.
Van Camp v. Bradford
623 N.E.2d 731 (Court of Common Pleas of Ohio 1993).
The doctrine of caveat emptor applies only to situations where the defect is discoverable to the buyer. If the defect is not discoverable and material in nature, the seller may have a duty to disclose. A defect of the status of stigma on a property is not discoverable and is thus a latent defect.
A jury could find that there was an affirmative request for information regarding the safety of the home and that the response was a misrepresentation. Summary judgment denied.
About 6 months before the sale of the home, a serious crime was committed in the basement of the home. Shortly thereafter, the neighborhood was encountering similar crimes. The perpetrator was not apprehended.
Van Camp toured the property after these crimes and noticed bars on the basement windows. She asked what they were for and the seller (Bradford) said there had been a crime about 15 years prior, but that the crime was no longer an issue.
After purchasing the home, the Van Camp property became the subject of further crime. Van Camp then initiated this lawsuit for failure to disclose the criminal activity surrounding the property.
For the rule stated above, it is very possible that a jury could find that an affirmative request for information was made and that Bradford did not provide a truthful statement. As this information was material (would have affected Van Camp’s willingness to purchase), there was a duty to disclose truthfully.
A patent defect in a property is something that is easily discoverable if a reasonable search of the property is conducted. On the other hand, a latent defect in a property is something that is not easily discoverable when a reasonable search is conducted. Usually, a seller has the duty to disclose latent defects.
According to Van Camp, a latent defect and a material misrepresentation about the defect could give rise to a cause of action.
Additionally, “as is” contracts only apply to the patent defects of the property unless there is fraud.
Today, in residential transactions, there is a disclosure form that the seller must fill out when selling the property. If the seller makes a misrepresentation on the form for defects that they know or should have known (do a reasonable inquiry), they can be liable for those representations.
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.