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Keywords

contractbreach of contractliabilitysummary judgment
contractbreach of contractliabilitysummary judgment

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Wilson v. McCann, Not Reported in A.3d, 2014 WL 5326173

Facts

In 2007, Darlene McCann had a new septic system installed on her property based on a survey that incorrectly indicated the location of the potable water well. After purchasing the property, Karena A. Wilson discovered that the well was much closer to the septic system than indicated, necessitating a new well. Wilson filed suit against McCann for various claims, including breach of contract and negligent misrepresentation, after learning of the issue post-closing.

In 2007, McCann contracted with Gates Excavating to construct and install a new septic system on her property. Gates Excavating in turn contracted with Site Engineering Services to perform a survey plan of the property and an engineering design plan of the new septic system. Those plans erroneously indicated that the well supplying potable water to the home was located 103.60 feet from the site of the proposed septic system. After buying the property, Wilson learned that the potable water well was actually located only forty-five to fifty feet from the septic system, an environmentally-unsafe distance which required the construction of a new well.

Issue

Did Darlene McCann breach the contract or commit fraud or negligent misrepresentation regarding the location of the septic system in relation to the potable water well?

Did Darlene McCann breach the contract or commit fraud or negligent misrepresentation regarding the location of the septic system in relation to the potable water well?

Rule

A seller of real property has a duty to disclose known latent defects, and a contract selling property 'as is' does not absolve the seller from liability for known defects that are not readily apparent to the buyer.

A seller of real property has a duty to disclose known latent defects, and a contract selling property 'as is' does not absolve the seller from liability for known defects that are not readily apparent to the buyer.

Analysis

The court found that there was no evidence that McCann knew or should have known about the septic system's proximity to the well. The judge noted that the property was sold 'as is' and that Wilson had the opportunity to conduct inspections but chose not to. The court emphasized that McCann did not intentionally misrepresent the well's location and that the existence of the open well was visible and noted in prior surveys.

The court found that there was no evidence that McCann knew or should have known about the septic system's proximity to the well. The judge noted that the property was sold 'as is' and that Wilson had the opportunity to conduct inspections but chose not to. The court emphasized that McCann did not intentionally misrepresent the well's location and that the existence of the open well was visible and noted in prior surveys.

Conclusion

The court affirmed the summary judgment in favor of McCann, concluding that Wilson's claims were unsupported by the evidence.

The court affirmed the summary judgment in favor of McCann, concluding that Wilson's claims were unsupported by the evidence.

Who won?

Darlene McCann prevailed in the case because the court found no evidence of misrepresentation or breach of contract on her part.

Darlene McCann prevailed in the case because the court found no evidence of misrepresentation or breach of contract on her part.

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