2005 Ct. Sup. 11596
No. CV 04-0486768 SConnecticut Superior Court Judicial District of New Haven at New Haven
July 12, 2005
MEMORANDUM OF DECISION
MEADOW, JUDGE TRIAL REFEREE.
The plaintiff, Patricia Ziel (Ziel) brings this three-count complaint against Austin Walsh and Rose Walsh (Walsh).
The first count alleges that Ziel entered into a contract for the purchase and sale of real property located at 5 Westview Drive, Wallingford, Connecticut (The Property) from the owners Walsh. Attached to the Sales Agreement (Exhibit 1) is the required Residential Property Condition Disclosure Report pursuant to C.G.S. § 20-327b.
Ziel inter alia alleges that in response to the question concerning plumbing and sewer system problems the defendant answered “No.” Ziel asserts that the plumbing and sewer system directly under the bathroom in the property was totally collapsed. Ziel further asserts that she expended $15,131.09 to correct the problem and replace other items damaged as a result of the problem. Ziel claims she would not have purchased the home if she had known of the problem.
The second count alleges that the representation to the plaintiff was fraudulent to induce the plaintiff to purchase the property and that she relied upon the representations to her detriment.
The third count asserts that the defendants breached the covenants of good faith and fair dealing implied in their contract and that the defendant’s actions were willful and malicious, for which she seeks damages. The defendants deny the allegations in all counts. The parties filed post-trial briefs. The plaintiff produced an expert from a plumbing company who testified in this case.
The contract of sale was entered into on March 20, 2003. The CT Page 11597 report attached to the purchase and sales agreement reflects that to the best of Walsh’s knowledge they did not know of any problems within the sewer lines except that the sewer line to the street is snaked out every two years for tree roots.
Ziel testified that she had arranged for and obtained a Home Inspection, not made a party to this action, which did not disclose any problems with the sewer system. The inspection was done on March 28, 2003 and according to the sales agreement the purchaser, Ziel, had until April 4, 2003 to terminate the agreement or give the seller notice of the problem and if not corrected or unwilling to correct that the contract would be null and void. (See Exhibit 1.)
Ziel took title to the property on May 15, 2003 but did not move into the premises until May 28, 2003.
Ziel was desirous of making major alterations to the property by moving the washing machine from the kitchen into the bathroom. She at first engaged her brother who was a plumber to do some of the necessary alterations to the bathroom.
The parties agreed to a dual agency (Exhibit 1) the listing agent of the seller.
The alterations of the purchasers Ziel, is that the answer on the Residential Disclosure report is marked “no” in answer to question 9. However, under 9b of said report the Sellers did disclose a problem in the sewer line when it stated “Line to Street snaked out every two years for roots.”
The defendant sellers at no time ever spoke directly to Ziel and other than the Residential Disclosure did not make any verbal or written communication or statements to Ziel.
Ziel produced an expert Kenneth Pignone (Pignone) a licensed plumber since 1982 who worked for Solvit who testified that he was called on 6/6/03 due to a toilet overflow/quote moving washing machine from kitchen to bathroom (Exh. 2). Exhibit 2 states under required repair description:
snake main drain at toilet and clean out in front yard further waive. $69.00
Thereafter Exhibit 2 shows Recommended Repair description: CT Page 11598
“new main sewer line from stack in bathroom to existing 6″ clay drain in front yard paid on sale invoice #61347 $5,000.”
Pignone testified that he tried to snake outline but was unable to do so from wall in house although able to clean out from street to “clean out.” However, when he tried from toilet to clean hit “Brick Wall.” Pignone testified the only way to clean up problem was to dig up and expose the pipe to repair it. Pignone further testified in order to do this he would have to take everything out including the tub and vanity. Pignone stated he had trouble finding the sewer line so he had to jack hammer the entire floor since house was built on slab.
Pignone said he found pipe that was fully clogged with sludge for a 2-foot distance in the sewer line. He recommended a new sewer line be put in as the least expensive way to go. Pignone stated it was a fully impacted pipe with a bad pitch. He testified that the condition was there for years and there would be continued problems. Pignone had to put all removed items he removed and it would be cheaper to get new toilet, tub and vanity.
On cross-examination Pignone testified he knew that Ziel was desirous to move washing machine into bathroom and that he would have to jack hammer up the floor to put in washing machine. Pignone saw cast iron pipe that was there and should have to replace it with PPC tubing to comply with building code. Pignone admitted he could not tell how long it was clogged.
The plaintiff in addition to the changes made by Solvit (Pignone) of $5,300 lists as damages replacement of tub, shower, toilet and vanity in bathroom $2,713.60 (Exh. 3); replacement of bathroom floor covering $862.22 (Exh. 4); (Exh. 5) replace carpeting $2,530.78 and Exhibit 6 Home Depot $300.89 for a total of $11,707.49.
Austin Walsh testified that he did not know of any problems as described by Pignone and that they never experienced a problem other than the roots which they had cleaned out.
Rose Walsh testified that she and family owned the house for 15 years which was built in 1956. She purchased the house in 1988; she further testified that she daily used the appliances in the CT Page 11599 bathroom without a problem. She had the system cleared for roots March 29, 2003. She was not aware of any problems. She watched the company snake out the system both ways.
The plaintiffs argue that Walsh should have written “unknown” in answering the question about sewer lines.
The defendant in their argument as authority to support their defense cite the case of Giametti v. Inspectors Inc., 76 Conn.App. 352, 358-59.
Our legislature enacted § 20-327b, otherwise known as the Uniform Property Disclosure Condition Act, to reduce the risk of miscommunication regarding residential property between a vendor and a prospective purchaser. The statute requires a vendor of such property to provide “a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser’s execution of any binder [or] contract to purchase . . .” General Statutes § 20-327b(a). Such a report must include a provision informing the purchaser that any representation made by the vendor in the § 20-327b
report is limited to the vendor’s actual knowledge.
General Statutes § 20-327b(d)(2)(A). The statute requires every report to include a provision that encourages the potential purchaser to have the property inspected by a professional inspector. General Statutes § 20-327b(d)(2)(B). Furthermore, the § 20-327b report must inform the purchaser that any representation made by the vendor does not constitute a warranty by the vendor. General Statutes § 20-327b(d)(2)(D). At the same time that the legislature enacted this statute, it also enacted §§ 20-327d[fn.5] and 20-327e.[fn.6] These statutes underscore the legislature’s intent with respect to statements in a § 20-327b report. Section 20-327d
provides that § 20-327b does not create any new express or implied warranties by the vendor. It states that a vendor is not required to obtain a preconveyance inspection or a test with respect to the physical condition of the property. Moreover, § 20-327e reiterates that the representations made by the vendor are limited to information about which the vendor has actual knowledge.[fn.7]
CT Page 11600
In footnotes of such holding the court stated the following:
[fn.5] General Statutes § 20-327d provides: “No provision of section 20-327b or 20-327c: (1) Shall be construed to create any new implied or express warranties on behalf of the seller of the property; or (2) shall be construed to require the seller of the property to secure inspections, tests or other methods of determining the physical conditions of the property.”[fn.6] General Statutes § 20-327e provides: “The representations made by the seller pursuant to section 20-327b or 20-327c
shall be construed only to extend to the seller’s actual knowledge of the property and no constructive knowledge shall be imputed to the seller.”[fn.7] The regulations accompanying § 20-327b do not further illuminate the scope of the report. Rather, the regulations focus on the responsibilities of a licensed real estate agent or broker to avoid fraudulent misrepresentations or concealments. See Regs., Conn. State Agencies § 20-328-5a.
The defendants in their post-trial brief argue that Ziel intended to make major renovations to the interior of the property and is now looking to have Walsh pay for same.
Defendants further argue that the vendor in § 20-327b is limited to actual knowledge (emphasis added). The report encourages that the purchaser have the property inspected by a professional inspector which was done in this case without any adverse reports about the sewer line.
Finally, the report informs the purchaser that any representation made by vendor does not constitute a warranty (emphasis added by the vendor).
The court finds that the defendants did not have knowledge of the actual problem described by Pignone other than the tree roots that they did disclose. It does not seem logical that the Walshes would have disclosed the tree root problem and deliberately fail to disclose the sludge Pignone described. There was no credible testimony that the alleged long-term blockage described by Pignone was experienced by the long-term residents, the sellers without some action taken by them before. Walsh disclosed what CT Page 11601 problem they actually knew of in the sewer line. No warranty was attached by the disclosure. An inspection was made without any representation of a problem, nor did the purchaser Ziel rely on any statements made by Walsh. The court finds that the defendants did not knowingly misrepresent in the Statutory Report under §20-327b. Giametti, supra 357.
Accordingly, the court finds in favor of the defendant as to Count One.
As to Count Two the court also finds in favor of the defendant Walsh since in order for fraud to exist there must be proof that the defendant knew that it was false; that the plaintiff relied upon that falsehood, and the statement was made to induce the plaintiff. No evidence was adduced at trial to establish a count of fraud. Accordingly the court finds in favor of the defendant on Count Two.
As to the Third Count of the covenant of good faith and fair dealing the court finds that the plaintiff has failed to meet their burden of proof that the behavior of the defendants acted in bad faith in the representations made on the disclosure report. At no time did Walsh communicate with Ziel to induce her to purchase the property. “Bad faith means more than mere negligence it involves a dishonest purpose” which has not been demonstrated in this case.
The defendants finally argue that the history of § 20-327b of C.G.S. was intended to reduce the risk of miscommunication and not to create any new express or implied warranties and that the representation by a vendor is limited to their actual knowledge.
The court finds in favor of the defendants on all counts for the foregoing reasons.
Frank S. Meadow Judge Trial Referee
CT Page 11602