Commercial Real Estate Attorney
Q.Real estate transaction of commercial property in NYS; out of state buyer. Detailed info from realtor: septic system requires pump out every 1-2 years. Seller represents no problem with septic. Day before closing, realtor gets letter from contractor stating that septic in good working order to satisfy lender for buyer. Buyer does not do any type of inspection. Within one month of purchase--cited by health department as imminent threat. Buyer/owner learns that the septic has been a problem for years and has been repeatedly cited by health department. Centralized replacement system will be required costing about 20% of purchase price. Does the buyer have any recourse against the seller, or does the failure to inspect leave him out on his own? Any direction
A.Non-inspection would provide a basis for a fraud claim so long as there was no reason for Buyer to have known there was a problem or should have made an inspection. Reliance, which is justified, supports a fraud claim. If Buyer had inspected and found a problem, the fraud claim probably would have died a natural legal death; but, if the Seller's representation also was in the nature of a warranty and not just a representation of fact, then buyer still has a breach of warranty/contact claim -- so long as the warranty survived closing. Remember that, in the normal course, ALL things in the contract of sale merge into the deed unless expressly carved out. Nevertheless, I believe that a fraud claim regarding an undiscoverable problem legally survives closing whether or not so stated in the contract. Remember the "haunted house" case? I don't momentarily recall which App. Div. was involved (1st or 2nd Dep't), but the appellate court sustained a claim for damages (or, was it rescission?) where the Buyers claimed the house was haunted and it was discovred that the Seller previously had claimed the house was haunted? In other words, as a matter of law -- religion aside -- ghosts and poltergeists DO exist.
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