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Kaye v. Buehrle, 8 Ohio App.3d 381, 457 N.E.2d 373, 8 O.B.R. 495

Facts

In the spring of 1980, Lawrence B. Kaye and his wife sought to purchase a new home and were referred to a property owned by V.E. and Kathleen J. Buehrle by realtor Anita Levin. After a brief inspection, the Kayes agreed to pay the full asking price of $129,000 and signed a contract that included an 'as is' clause. The Kayes were not informed about the basement's condition, which was known to leak during heavy rain, and after moving in, they experienced significant flooding and structural issues, leading them to file a lawsuit claiming fraud and breach of warranty.

In the spring of 1980, plaintiffs, Lawrence B. Kaye and his wife, were in the market for a new home. They contacted Anita Levin of Marting Realty who recommended a home owned by defendants V.E. and Kathleen J. Buehrle. On June 1, 1980, after a brief inspection of the house, the Kayes presented an offer to the Buehrles which was rejected. The Kayes then agreed to pay the full asking price of $129,000 and later the same evening the parties executed a contract which was a standard Marting form. Prior to the signing of the contract no information was given to the Kayes concerning the condition of the basement even though Marting was made aware by the Buehrles that it would leak during a torrential rain.

Issue

Did the trial court err in granting a directed verdict in favor of the realtor and vendors regarding the claims of breach of warranty, fraudulent misrepresentation, and fraudulent concealment?

Did the trial court err in granting a directed verdict in favor of the realtor and vendors regarding the claims of breach of warranty, fraudulent misrepresentation, and fraudulent concealment?

Rule

When a buyer contractually agrees to accept real property 'as is,' the seller is relieved of any duty to disclose that the property was in a defective condition. An 'as is' clause cannot be relied on to bar a claim for fraudulent misrepresentation or fraudulent concealment.

1. When a buyer contractually agrees to accept real property “as is,” the seller is relieved of any duty to disclose that the property was in a defective condition. 2. An “as is” clause cannot be relied on to bar a claim for fraudulent misrepresentation or fraudulent concealment.

Analysis

The court found that the Kayes could not recover for breach of warranty because there was no evidence of any express warranty made by the Buehrles prior to the sale. Regarding fraudulent misrepresentation, the court noted that the Kayes did not rely on any affirmative representations made by the Buehrles, as no statements were made about the property's condition before the sale. For fraudulent concealment, the court determined that there was no evidence of intent to conceal defects, as the Buehrles had repaired the basement wall without any intent to hide issues.

The court found that the Kayes could not recover for breach of warranty because there was no evidence of any express warranty made by the Buehrles prior to the sale. Regarding fraudulent misrepresentation, the court noted that the Kayes did not rely on any affirmative representations made by the Buehrles, as no statements were made about the property's condition before the sale. For fraudulent concealment, the court determined that there was no evidence of intent to conceal defects, as the Buehrles had repaired the basement wall without any intent to hide issues.

Conclusion

The court affirmed the trial court's directed verdict in favor of the defendants, concluding that the Kayes failed to establish their claims of fraud and breach of warranty.

The court affirmed the trial court's directed verdict in favor of the defendants, concluding that the Kayes failed to establish their claims of fraud and breach of warranty.

Who won?

The defendants (realtor and vendors) prevailed because the court found that the Kayes did not provide sufficient evidence to support their claims of fraud or breach of warranty.

The defendants (realtor and vendors) prevailed because the court found that the Kayes did not provide sufficient evidence to support their claims of fraud or breach of warranty.

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