FRANCES C. LAPINSKI v. ROBERT BAMFORD

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3930-07T33930-07T3

FRANCES C. LAPINSKI &

CHARLOTTE MELISSA HALL,

Plaintiffs-Appellants,

v.

ROBERT BAMFORD &

ANITA BAMFORD,

Defendants-Respondents.

____________________________

ROBERT BAMFORD &

ANITA BAMFORD,

Third-Party Plaintiffs,

v.

MICHAEL SARAJIAN &

ANI SARAJIAN,

Third-Party Defendants.

____________________________

 

Submitted January 13, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-1708-07.

Thomas P. Kelly, attorney for appellants.

Campbell Legal Associates, PLLC, attorneys for respondents (Denise Campbell, on the brief).

PER CURIAM

Plaintiffs, Frances C. Lapinski and Charlotte Melissa Hall, appeal from the March 28, 2008 order of the trial court granting summary judgment dismissing their complaint against defendants Robert and Anita Bamford. For the reasons that follow, we reverse.

The pertinent factual background may be summarized as follows. Defendants owned a three-story townhouse at 6 Willow Terrace in Hoboken. That residence shares a common wall with 4 Willow Terrace, which is owned by Michael and Ani Sarajian.

In or around January 2006, plaintiffs signed a contract to purchase defendants' home, for a price of $779,000. The contract stated that the property was being sold in an "AS IS" condition, and that the agreement was "entered into based upon the knowledge of the [b]uyer as to the value of the land and whatever buildings are upon the [p]roperty, and not on any representation made by the [s]eller, the named [b]roker(s) or their agents as to character or quality." The sale was subject to a satisfactory home inspection.

Plaintiffs visited the home on several occasions prior to signing the contract. Lapinski stated that Robert Bamford told her "everything" about the house, including such details as "the insulation in the glass[,]" "the fiberboard on the porches[,]" the location of the electrical boxes, and defendants' experiences with the boiler, water heater and bathroom radiator.

On March 3, 2006, the Sarajians sent the following notice to defendants:

Please be advised that we Ani & Michael Sarajian, are the owners of 4 Willow Terrace which is about to have an addition built in the rear yard. In the next several weeks[,] we intend to construct a rear addition along the property lines. The west property line is adjacent to your property at 6 Willow Terrace. Under the applicable Building Code Regulations, the owner of a property intending to undertake such excavation work is required to give written notice to the adjacent property owner seven days in advance.

This letter shall also serve as a formal request, pursuant to said regulations, for a license to enter onto your property both prior to the commencement of the work and at reasonable intervals during the course of the work, to inspect and preserve your property from damage.

If you consent to said license, then it shall be my responsibility as the person undertaking said work, to preserve and protect your property from damage or injury at all times during the work and at my own expense. In the event you do not consent to said license, then it shall be your duty to make safe your own property, and you are granted a license to enter onto the property located at 4 Willow Terrace in order to do so.

If you consent to this license, please sign and return the extra copy of this letter to me. Failure to receive said written consent within seven (7) days from the date hereof will be deemed a denial of said license, and written notice will then be given to the Construction Official, pursuant to the applicable regulations, that said license was denied. If said license is denied, the responsibility of providing protection to the adjoining property becomes exclusively the responsibility of the owner of said adjoining property.

Defendants received this notice on March 6, 2006, and discussed it with their attorney. Robert Bamford testified in deposition that his "opinion" of that notice "was that our neighbors were doing some work regarding our common wall."

Robert Bamford signed the notice as "agreed" on March 8, 2006. He stated that, "under the direction of [his] attorney[,]" he did not give a copy of this notice to plaintiffs prior to closing.

The parties closed on March 23, 2006. Robert Bamford testified that he and Anita Bamford "were under the assumption [the notice] was included in [plaintiffs'] closing documents." However, it was not.

Plaintiffs and their daughter moved into the townhouse on March 25, 2006. The following day, when Hall returned from work, she found "hammering and dust and bricks falling into [their] house . . . ." She went to the Sarajians' front door and encountered two workmen; she asked them to stop and one of them called his supervisor, who told Hall: "Don't worry about it. We understand that the bricks are being affected by the hammering, and once we're done hammering we'll make sure that . . . any damage from the bricks will be corrected."

Two days later, as Hall was getting ready to walk her daughter to school in the morning, the "neighbor behind [them]" said to her, "Do you realize that the side of your house is gone?" Upon returning from taking her daughter to school, Hall went upstairs to the third floor deck and "leaned [over] and looked. In fact, the whole side of [their] house right down to the insulation board was removed. [Its] aluminum siding [was] pulled off."

Construction on the Sarajians' residence stopped temporarily when other neighbors complained. Three weeks later, following a period of prolonged rainfall, the ceiling on plaintiffs' residence "fell in."

The Sarajians then proceeded with a "gut renovation" of their house down to the "floor boards and beams." They extended the house to cover a six-foot side yard and constructed a second story addition. Plaintiffs discovered that the Sarajians had, in fact, moved out of their house before plaintiffs took occupancy of their townhouse, and did not return during the entire renovation period.

The construction next door buckled the floor in plaintiffs' daughter's bedroom, which the Sarajians' contractor repaired. In December 2006, when the rear of the Sarajians' house was exposed for construction, the bathroom pipes in plaintiffs' house froze and, shortly thereafter, tiles in the hallway outside the bathroom "began to lift up." The Sarajians' contractor "filled in" and reinsulated the outside wall. The bathroom ceiling began to leak and the Sarajians' contractor repaired that as well.

The construction and demolition, however, were "extraordinarily taxing" for the plaintiffs, who had to hire a housekeeper on a weekly basis to deal with the dust. Lapinski testified that the dust, mold and mildew aggravated her allergies to the extent that she was required to take daily medication.

More importantly, Lapinski testified, the renovation and extension of the Sarajians' house dramatically changed the views and atmosphere of plaintiffs' residence. Lapinski stated that, when plaintiffs purchased the house,

[t]his was a house that was great. It had a deck with a view. The view is gone. The kid's room had a wonderful view right down to a streetscape, backyard gardens. There's a wall in the place now. There's no more circulation in the house. We've lost light on the deck. Mildew grows on the deck. We've lost light on the patio. Mold grows on the patio. In a very short period of time it's not the place that we purchased.

Lapinski testified that the garden views had been very important to plaintiffs, because they had moved from a large suburban property, "and part of the moving to the city was this transitioning and the light and the openness and the opportunity to have the view from the room." In addition to the blocked views, the renovation left plaintiffs with "no privacy."

Lapinski further testified that she was "expecting a quiet and very, very comfortable life . . . . [She] was not expecting to be responding to contractors[,] . . . [and] was not expecting to be just generally harassed and aggravated." She expected to move into a house that "was so impeccably ready [to] live in that it would be a comfortable place to live where my allergies would not be affected, and all of that was taken away."

Lapinski also testified that she "would not have purchased the house" had she known of the impending renovations next door. She added that there was "no mention" of the Sarajians' notice to defendants when they discussed the purchase, when they prepared the contract of sale or when they went to closing. Plaintiffs' real estate attorney certified that she never received the notice prior to closing and, in fact, saw it for the first time on February 25, 2008. Had the attorney been provided with a copy of that notice, she "would most definitely have alerted [her] clients to the fact that this information ha[d] a major impact on their contract rights," and that the "proposed construction would very likely have a negative impact on the value of the property they were buying" and "could affect the loss of light, air, and views . . . ."

Ani Sarajian testified that Michael Sarajian had shown Anita Bamford their final renovation plans in January or February 2006. In her deposition, however, Anita Bamford asserted that she was only aware that the Sarajians "were going to be doing some work" and that she "was shocked" when she heard what had happened. Robert Bamford testified that he never attempted to ascertain what type of work the Sarajians planned.

On April 3, 2007, plaintiffs filed a complaint against the Bamfords, alleging that defendants had acted fraudulently and negligently by "not informing the plaintiffs of the notice of March 3, 2006 concerning the proposed construction[,]" and by "not informing plaintiffs of the impending construction at 4 Willow Terrace . . . ." Plaintiffs' complaint alleged that defendants "knew when they asserted to plaintiffs that they had fully informed plaintiffs of any and all problems with the premises that this, in fact, was not true"; that defendants failed to inform plaintiffs of the Sarajians' notice "because they feared plaintiffs or their attorney would object to a closing in the face of an impending renovation of the adjoining property [that would] affect not only . . . common walls but also . . . the quality of life of the plaintiffs in their new home."

On January 21, 2008, defendants moved for summary judgment. They claimed that they had no duty "to disclose off-site conditions, . . . [or] future off-site conditions."

In granting summary judgment, the trial court accepted for purposes of the motion that plaintiffs had not received the Sarajians' notice. The court acknowledged that there was "some dispute as to whether or not the [notice] signed by the defendant[s]/sellers was or was not given to the buyers." The court concluded, however, that it did not "consider that to be relevant for the purpose of the legal question as to the existence or nonexistence of the duty that is the foundation for the complaint."

The trial court found that the Sarajians' renovation was "an off-site condition . . . not something that was in the house or on the house . . . ." The court stated:

This is an off-site condition in a sale of real estate that involves on the part of the defendant[s]/sellers what the law calls a . . . casual seller to distinguish that term from a professional developer or seller of real estate, or a professional real estate broker, . . . to contrast that from the situation in this case where the defendants simply were selling . . . the single family home that they own and move[d] some place else.

Citing the New Residential Construction Off-Site Conditions Disclosure Act (Disclosure Act), N.J.S.A. 46:3C-1 to -12, the court noted that the off-site conditions referred to in the statute "are completely different from the one[s] that we have in this case."

On appeal, plaintiffs contend that (1) the trial court erroneously held that defendants had no duty to disclose the renovations to the Sarajian's house because an off-site condition was involved; (2) as "equitable owners" of their residence, plaintiffs were "absolutely entitled" to notice of the Sarajians' renovations; and (3) the Disclosure Act does not apply in this case.

We concur with plaintiffs' contentions that the Disclosure Act is inapplicable here, and that the circumstances did not involve an off-site condition. We conclude, therefore, that the trial court erred when it found that defendants had no duty to disclose to plaintiffs the notice they had received from the Sarajians.

To establish a claim of fraudulent concealment by a seller in a real estate transaction, a plaintiff must establish "the deliberate concealment or nondisclosure by the seller of a material fact or defect not readily observable to the purchaser, with the buyer relying upon the seller to his detriment." State Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 503 (1983). The Supreme Court had recognized the common law basis for such a cause of action in Weintraub v. Krobatsch, 64 N.J. 445, 449-55 (1974). There, the Court rejected an assertion by a "casual seller" that she was under no duty to inform the purchasers of her home that it was infested with roaches. The buyers had inspected the home several times in daylight and found it satisfactory; the real estate contract acknowledged that the inspection had been satisfactory; no representations had been made by the seller; and the seller assumed no responsibility as to the present or future condition of the premises. Id. 447. However, during a last-minute walk-through of the home prior to closing, the buyers discovered cockroaches "'running in all directions, up the walls, drapes, etc.'" Ibid.

The Court held that the buyers were entitled to proceed with their cause of action for fraudulent concealment to establish "that they were equitably entitled to rescind" the contract because the house was infested with roaches and the seller was "aware of the infestation" and "deliberately concealed or failed to disclose the condition because of the likelihood that it would defeat the transaction." Id. 455. The Court noted that application of the doctrine of caveat emptor to charge the purchaser with knowledge of the condition would be "wholly inequitable." Id. at 456 (quoting Reste Realty Corp. v. Cooper, 53 N.J. 444, 453-54 (1969)).

In Strawn v. Canuso, 140 N.J. 43, 59 (1995), the Court reaffirmed the holding in Weintraub that "a seller of real estate or a broker representing the seller would be liable for nondisclosure of on-site defective conditions if those conditions were known to them and unknown and not readily observable by the buyer." However, the Court considered "[w]hether and to what extent we should extend this duty to off-site conditions[,]" and concluded that such a duty should be limited "to professional sellers of residential housing . . . and the brokers representing them." Ibid.

The Legislature subsequently passed the Disclosure Act to further limit this duty. N.J.S.A. 46:3C-2. Under the Act, sellers of newly constructed homes are merely obligated to provide buyers with a statutorily-prescribed notice that directs the buyers to information maintained by municipalities regarding certain off-site conditions. N.J.S.A. 46:3C-8. That obligation comprises "the entirety of the disclosure duties of sellers of newly constructed real estate . . . ." N.J.S.A. 46:3C-2.

Here, plaintiffs did not purchase a newly constructed home. Thus, the Disclosure Act did not apply. Moreover, the Sarajians' renovations involved construction directly impacting upon plaintiffs' residence. When Robert Bamford signed the Sarajians' notice, he granted them a license to enter the premises of 6 Willow Court. Plaintiffs unknowingly acquired the license at the closing.

A license constitutes "permission to commit some act that would otherwise be unlawful; . . . an agreement . . . that it will be lawful for the licensee to enter the licensor's land to do some act that would otherwise be illegal . . . ." Black's Law Dictionary 931 (7th ed. 1999). A licensee is "[o]ne who has permission to enter or use another's premises, but only for one's own purposes and not for the occupier's benefit." Id. at 932.

Plaintiffs purchased defendants' property unaware that the Sarajians' license attached to it. That license did not constitute an off-site condition. Rather, the license expressly permitted the Sarajians to enter onto defendants' property as required during the entire course of their renovation, and to take action on that property to "preserve and protect" it. At the time Robert Bamford agreed to the terms of the notice, on March 8, 2006, defendants were under a binding contract to convey their property to plaintiffs. At the closing two weeks later, defendants were clearly aware that the license they had granted to the Sarajians would impact directly upon plaintiffs' use and enjoyment of 6 Willow Terrace.

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Ponte v. Overeem, 337 N.J. Super. 425, 427 (App. Div. 2001), rev'd on other grounds, 171 N.J. 46 (2002). "In determining whether there is a genuine issue of material fact for summary judgment purposes, the court must ascertain 'what reasonable conclusions a rational jury can draw from the evidence . . . .'" Ibid. (citation omitted).

Applying that standard here, we conclude that the trial court's grant of summary judgment was in error. By relying upon inapplicable statutory and case law, the trial court improperly found that because defendants owed no duty to plaintiffs, they were entitled to summary judgment as a matter of law. Plaintiffs claim that defendants deliberately withheld information about the Sarajians' license "because [defendants] feared plaintiffs . . . would object to . . . closing in the face of an impending renovation of the adjoining property . . . ." Whether that assertion is credible and sufficient to establish defendants' intent to defraud plaintiffs is a jury question. Granting, as we must, "all the favorable inferences to the non-movant[,]" Brill, supra, 142 N.J. at 536, we conclude that "'reasonable minds could differ as to whether any [fraud or] negligence ha[s] been shown . . . .'" Ibid. (quoting Bell v. Eastern Beef Co., 42 N.J. 126, 129 (1964)).

 
Reversed and remanded.

We base our factual review upon the pleadings and exhibits submitted to the trial court on the summary judgment motion.

The Bamfords filed a third-party complaint against the Sarajians; however, the record does not reflect that the Sarajians ever entered an appearance or filed an answer, nor does the record reflect that the Sarajians were ever served with the third-party complaint.

(continued)

(continued)

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A-3930-07T3

June 8, 2009