Interesting fact pattern.  Seller discloses prior treatment of termite damage.  Some minor termite damage visible from buyer inspection.  In reality, extensive termite damage had been covered up by seller using much effort, including actually plastering rotten wood, texturing to look like actually wood, and then painting over.  After moving in, covered up damage begins to expand and fall from home.  Further inspection discovers extent of damage.

Obviously some termite damage was open and obvious.  However, extent of the damage was not open and obvious.  While a further detailed inspection may have discovered the greater extent of damage, Johnson does not generally require inspection when seller has intentionally covered up extent of damage.

Any thoughts on how this one plays out if buyer sues seller for intentionally covering up "extent" of the damage?

Ian T. Kravitz, Esquire  view my biohttp://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.comhttp://www.mkpalaw.com/
[cid:image001.gif@01CE7647.EC630130]https://plus.google.com/110645842525512865234  [cid:image002.gif@01CE7647.EC630130] http://www.firmsitepublisher.com/fseditor/fs3/%20http:/www.linkedin.com/pub/malka-kravitz-p-a/53/441/b3a  [cid:image003.gif@01CE7647.EC630130] https://twitter.com/#!/MKPALAW  [cid:image004.gif@01CE7647.EC630130] http://www.facebook.com/MalkaKravitzPa
[cid:image009.jpg@01CE7648.0A078170]

[cid:image007.jpg@01CE7647.EC630130][cid:image008.jpg@01CE7647.EC630130]

CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. If you are not the intended recipient, an addressee, or the person responsible for delivering this to an addressee, you are hereby notified that reading, using, copying, or distributing any part of this message is strictly prohibited. If you have received this electronic mail message in error, please contact us immediately and take the steps necessary to delete the message completely from your computer system. The receipt by anyone other than the intended recipient does not waive the attorney-client privilege; neither will it constitute a waiver of the work-product doctrine.

TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exist.

Buyer wins. Fraud.

Sent from my iPhone

On Jul 1, 2013, at 11:11 AM, "Ian Kravitz" <Ian@mkpalaw.commailto:Ian@mkpalaw.com> wrote:

Interesting fact pattern.  Seller discloses prior treatment of termite damage.  Some minor termite damage visible from buyer inspection.  In reality, extensive termite damage had been covered up by seller using much effort, including actually plastering rotten wood, texturing to look like actually wood, and then painting over.  After moving in, covered up damage begins to expand and fall from home.  Further inspection discovers extent of damage.

Obviously some termite damage was open and obvious.  However, extent of the damage was not open and obvious.  While a further detailed inspection may have discovered the greater extent of damage, Johnson does not generally require inspection when seller has intentionally covered up extent of damage.

Any thoughts on how this one plays out if buyer sues seller for intentionally covering up “extent” of the damage?

Ian T. Kravitz, Esquire  view my biohttp://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.comhttp://www.mkpalaw.com/
<image001.gif>https://plus.google.com/110645842525512865234  <image002.gif>http://www.firmsitepublisher.com/fseditor/fs3/%20http:/www.linkedin.com/pub/malka-kravitz-p-a/53/441/b3a <image003.gif>https://twitter.com/#!/MKPALAW <image004.gif>http://www.facebook.com/MalkaKravitzPa
<image009.jpg>

<image007.jpg><image008.jpg>

CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. If you are not the intended recipient, an addressee, or the person responsible for delivering this to an addressee, you are hereby notified that reading, using, copying, or distributing any part of this message is strictly prohibited. If you have received this electronic mail message in error, please contact us immediately and take the steps necessary to delete the message completely from your computer system. The receipt by anyone other than the intended recipient does not waive the attorney-client privilege; neither will it constitute a waiver of the work-product doctrine.

TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exist.

CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion

Remember, also that Freud may involve a negligent misrepresentation.See Golden v. Complete Holdings, 818 F. Supp. 1495 (M.D. Fla. 1993)

Same for innocent misrepresentation:
Innocent Misrepresentation of Fact. According to the weight of authority, misrepresentation of material facts, although innocently made, if acted on by the other party to his detriment, will constitute a sufficient ground for rescission and cancellation in equity. The real inquiry is not whether the party making the representation know it to be false, but whether the other party believed it to be true and was misled by it in making the contract; and, whether the misrepresentation is made innocently or knowingly, the effect is the same. It is as conclusive a ground of relief in equity as a willful and false assertion, for it operates as a surprise and imposition on the other party; and in such case the party must be held to his representations.'  Sutton v. Cast-Crete Corp. of Fla., 197 So.2d 556 (Fla.App. 2 Dist., 1967)    See also Jones v. Walter C. Hardesty, Inc., 1930, 100 Fla. 155, 129 So. 497; Peace River Phosphate Min. Co. v. Thomas A. Green, Inc., 1931, 102 Fla. 370, 135 So. 828, and Robson Link & Co. v. Leedy Wheeler & Co., 1944, 154 Fla. 596, 18 So.2d 523.

----- Original Message -----
From: Thomas C. Cooney
To: Ian@mkpalaw.com
Cc: clc-discussion@lists.flabarrpptl.org
Sent: Monday, July 01, 2013 11:41 AM
Subject: Re: [CLC-Discussion] Seller Liability under Johnson

Ian:

The answer relates back to the Seller's knowledge of the full extent of termite damage.  Assuming that a standard residential disclosure form was used for your client's transaction, what were the specific disclosures provided by the Seller regarding both inspection and treatment for "termites, dry rot, pest or wood destroying organisms?"

In this instance you indicate that Seller disclosed prior treatment.  Did Seller also provide the date, type of treatment and company name?  Any proposal/estimate/contract and/or invoice from the treating company should have indicated the extent of infestation to be treated.  If the full extent of infestation/damage is indicated on any proposal/estimate/contract and/or invoice, then an argument could be made that the Seller was on notice and would have a duty to disclose the full extent of such termite damage.

Thomas C. Cooney, Esq.
Assistant General Counsel
Office of The General Counsel
School Board of Broward County, Florida
754-321-2050

Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records.  Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law.  Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida.  If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing.

Ian Kravitz Ian@mkpalaw.com on Monday, July 01, 2013 at 10:44 AM -0400 wrote:
Interesting fact pattern.  Seller discloses prior treatment of termite damage.  Some minor termite damage visible from buyer inspection.  In reality, extensive termite damage had been covered up by seller using much effort, including actually plastering rotten wood, texturing to look like actually wood, and then painting over.  After moving in, covered up damage begins to expand and fall from home.  Further inspection discovers extent of damage.

Obviously some termite damage was open and obvious.  However, extent of the damage was not open and obvious.  While a further detailed inspection may have discovered the greater extent of damage, Johnson does not generally require inspection when seller has intentionally covered up extent of damage.

Any thoughts on how this one plays out if buyer sues seller for intentionally covering up “extent” of the damage?

Ian T. Kravitz, Esquire  view my bio
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.com
http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png  http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png

AAA AVRated

CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. If you are not the intended recipient, an addressee, or the person responsible for delivering this to an addressee, you are hereby notified that reading, using, copying, or distributing any part of this message is strictly prohibited. If you have received this electronic mail message in error, please contact us immediately and take the steps necessary to delete the message completely from your computer system. The receipt by anyone other than the intended recipient does not waive the attorney-client privilege; neither will it constitute a waiver of the work-product doctrine.

TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exist.

CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion