ANTHONY NICOSIA v. MICHAEL MAYZLER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6523-04T16523-04T1

ANTHONY NICOSIA,

Plaintiff-Respondent,

v.

MICHAEL MAYZLER and

ELLA MAYZLER,

Defendants-Appellants.

___________________________________________________________

 

Submitted September 19, 2006 - Decided

Before Judges Coburn and R.B. Coleman.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, MID-L-9136-03.

Mandelbaum, Salsburg, Gold, Lazris, Discenza &

Steinberg, attorneys for appellants (Alona

Magidova, on the brief).

Respondents have not filed a brief.

PER CURIAM

At the conclusion of a bench trial, the judge found that defendants breached a contract for the sale of their house by failing to allow the purchasing plaintiff to conduct an inspection of defendants' in-ground pool before the closing. The judge found that the pool required repairs costing $10,060, and entered judgment in that amount for plaintiff, and defendants appeal. Although we accept the judge's findings of fact, we must reverse because as a matter of law, absent fraud, concealment or express warranty in the deed, a seller is not liable to the purchaser of real estate for damages resulting from defects in the premises.

We incorporate by reference the judge's findings of fact contained in his oral opinion of June 8, 2005, summarizing them briefly as follows. The parties entered into a contract for the sale of defendants' house, grounds and swimming pool. The contract contained the customary inspection clause, and plaintiff had the premises inspected in a timely fashion with the exception of the pool. After the contract had been signed, plaintiff asked defendants to allow him to have a company fully open and inspect the pool. When defendants refused, plaintiff did not tell his lawyer about the dispute and proceeded to attend the closing and accept the deed. In pertinent part, the deed provided as follows:

ALL REPRESENTATIONS AND/OR STATEMENTS MADE BY SELLER . . . SHALL NOT SURVIVE CLOSING OF TITLE. This means that the Seller DOES NOT GUARANTEE the condition of the premises AFTER the deed and affidavit of title have been delivered to the Buyer at the "Closing".

When plaintiff had the pool opened the next day the defects were discovered. Defendants did not know of the defects and had no reason to know of them.

The trial judge applied the covenant of good faith and fair dealing, but it is inapplicable here. The governing principle was expressed in Dieckman v. Walser, 114 N.J. Eq. 382, 385 (E. & A. 1933):

It is the general rule that the acceptance of a deed for land is to be deemed prima facie full execution of an executory agreement to convey, and thenceforth the agreement becomes void, and the rights of the parties are to be determined by the deed, not by the agreement.

[Dieckman v. Walser, 114 N.J. Eq. 382, 385 (E. & A. 1933).]

In Levy v. C. Young Construction Co., Inc., 46 N.J. Super. 293 (App. Div. 1957), aff'd 26 N.J. 330 (1958), that principle, taking into account the exception for a seller's fraud or concealment, was applied to deny recovery to a purchaser who had closed title in a case involving a sale by a builder. Id. at 297. Although the Supreme Court affirmed, it did not do so for the reasons expressed by the majority opinion below, noting that it did not have to decide "[w]hether the widely established rule followed below is harsh and inequitable and should be rejected, or whether it is sound and workable . . . ." Levy, supra, 26 N.J. at 334. In T & E Industries, Inc. v. Safety Light Corp., 123 N.J. 371, 388 (1991), however, the Court described this doctrine as the law of New Jersey, to be applied except when the seller "conceals or fails to disclose" a condition that he "knew or should have known" existed and that the buyer was not likely to discover. Since the trial judge correctly found that the exceptions were not applicable here, defendants were entitled to judgment.

Reversed and remanded for entry of judgment for defendants with costs.

 

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A-6523-04T1

October 16, 2006