Angrisani v. Cerone

A-2381-97T3 (N.J. Super. App. Div. 1998) (Unpublished)
  • Opinion Date: December 28, 1998

DEEDS; MERGER—A seller that engages in deliberate concealment of a defect in real property is not protected by the merger by deed doctrine even if the defect was readily observable or does not affect habitability of the property.

After closing on the purchase of a home, the buyer filed a complaint alleging that, prior to closing, its seller had removed valuable trees and shrubbery from the premises. The lower court found that the buyer had inspected the premises before closing and did not object to the condition of the property. In its view, the defect complained of was “fully observable” and did not survive the closing of title. Further, it reasoned that if the landscaping was “that important” to the buyer, it “should have secured an express warranty for this purpose.” Finally, the lower court found that the claimed defect was not a “material latent condition which affects the habitability of the property.” The Appellate Division reversed the summary judgment and remanded the matter for further proceedings to permit the buyer to show that the seller had wilfully concealed the condition. Here, the buyer was not asserting that the seller was aware of a “defect” in the property, material to the transaction, and deliberately concealed that defect. To the Appellate Division, the thrust of the claim was that upon execution of the contract of sale, the buyer became the equitable owner of the trees and shrubbery on the property and the seller removed them prior to closing without the buyer’s knowledge or consent. The particular claim was that the seller had removed the landscaping prior to closing and replaced it with “significantly inferior materials,” thereby deliberately concealing the alteration. In essence, the buyer claimed that the seller expected that it would not observe the alteration prior to closing, and would rely, to its detriment, on the expectation that the valuable trees and shrubbery would be part of the realty upon transfer of title. The Appellate Division further found that whether or not the alteration was “fully observable” is a question for the fact finder and that “[o]ne who engages in deliberate concealment may not urge that his victim should have been more circumspect or astute.” In addition, whether the alleged concealment was “of such sufficient nature” or involved simply “[m]inor conditions” is a fact issue, particularly in view of the buyer’s allegation that it would cost $18,000 to replace the landscaping.