Four Days Before Trial
Losing at Trial

What if the termite story was different?

Instead of the previous post, what if the facts were as follows:

The buyers purchase a summer cottage with the intent of turning it into a full time residence and selling off a lot for 125,000 as part of the transaction. The seller’s disclosure statement indicated there was no known infestation of termites or carpenter ants as well as a number of other items. The seller’s disclosure statement was not a contract – not a warranty. The contract they signed as part of this transaction said that if they didn’t get a pest inspection, then that pest inspection would of in all likelihood reveal termites then they have no right to sue the seller. That’s exactly what happened here.

The buyer did several things after identifying this property. He initiated the process for a land split to sell a lot and he got an inspection on the property. The inspection revealed all sorts of water related issues in the exact area.

I asked you what you thought before about the case when I described it in a neutral tone here. What do you think when I present the facts this way?

Comments

Robert Williamson(construction law blog)

Obviously, it makes lots of difference as it makes the purchaser less innocent. Indeed it suggests the purchaser knew more about the property then the seller did. I think to win the story must be framed around the conduct of the purchaser and the purchaser being in the best position to protect himself. Jury bias research suggests that the best way to do this is to begin the story in opening by describing what the purchaser did rather than what the seller did. The sellers story therefore should come after the story of the purchase. You want the jury focused on the purc hasers choices and his responsibility for those choice, e.g. his choice to purchse without an inspection or warranty when common sense told him termites were a risk, his choice not to get an inspection even after he had an expensive study done showing water issues, his choice to only require a representation that the seller knew of no problem, etc. You want the focus on the purchaser's conduct rather than on the issue of why didn't the seller have a clue about the termites. If you frame your story in terms of the buyers innocence that is what the jury will focus on and you are likely to be surprised by what they decide about that.(If I am the purchaser's attorney, that's what I focus on.) This approach also undercuts the anticipated innocent purchaser rule though as you know that is a big problem for the case.

RJON ROBINS

Unless the seller was aware of the buyer's specific intended use of the property, I don't think that really makes a difference at all. If it was a heartwarming story that pulled at my heartstrings, I could see it having some influence on the jury, but a land split? I don't think so.

As far as the termites, a problem you may run into if you are representing the Plaintiff, is that someone on the jury may have had termite problems in their home & knows that there are plenty of tell-tale signs that even a lay-person can spot as red flags. Unless the buyer can show s/he never lived in a house or building with termites, or unless it is demonstrated that the seller took some extraordinary measures to hide the live infestation, I think the Plaintiff has the burden of showing the jury why s/he didn't notice the droppings, the wings, the little holes in any exposed wood. And oh, by the way mr/ms. Plaintiff, when you did live in that house that had the termite problem what was that like? Swarming? Droppings everywhere? Those disgusting little wings in your draweres & cabinets? And so when you were getting ready to make this big investment you never thought to get the place checked and avoid that disgusting experience again?

Hope this helps,

RJON ROBINS
www.HowToMakeItRain.com
Helping Lawyers In Small Firms Make ALOT More Money!

Bill

After reading this, my answer goes more for a defense verdict. Although Mr. Ribins makes some good points, there just seems to be a question that is going to come back to the jury: why didn't the people get a pest inspection when the disclosures recommended it.

It would seem to require some evidence that the seller was actively concealing the infestation.

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