Come on now Pennsylvania!

I just read an article where a recently widowed mother and her now fatherless two kids moved to Pennsylvania to start over.  They bought a house only to find out there’d been a recent murder/suicide there.  The mother knew before the kids — the kids eventually found out from visiting friends on Halloween.  Yikes.

The woman sued the real estate agent and the sellers.  The trial court ruled in favor of the seller & agent saying that Pennsylvania law does not require the disclosure of such things.  The decision was appealed and a full panel of the appeals court upheld the decision, barely — it was nearly a split decision.  The women appealed to the Pennsylvania Supreme Court and it’s pending.

The lower courts in that case have blown it.  Admittedly, the text of the law makes some sense for physical defects (dry-rot, plumbing, etc.) that you can discover beforehand by inspection.  However, it makes absolutely no sense for defects a buyer has no way of discovering.

The Pennsylvania law in question presumes that defects can be discovered with due diligence by the buyer.  It certainly wouldn’t have been enacted had there been no reasonable way for buyers to learn of such defects.  Also, further support for why the law makes general sense is that the things that can really hurt a buyer are things they’re not likely to miss (hole in roof, water 1 foot high, etc.).   Conversely, the small things that might get missed are the things that are the least devastating to a home’s value.  In other words, if it’s important a buyer is likely find out easily on their own (hence the burden is on the buyer), and, if they don’t discover the defect it probably wasn’t that important or the buyer simply failed to reasonably investigate.  While this is not a perfect law it makes some rational sense as a way to resolve the disclosure issue … generally.

However, what if the defect (murder/suicide) is something that a buyer can’t reasonably know about?  What if that hidden defect greatly affects value?  What if the seller knew and the buyer didn’t?  What if it wasn’t just an innocent mistake by the seller … what if they (and their agent) took deliberate acts to hide the murder/suicide?  Isn’t that unfair in ANYONE’S book?

The current Pennsylvania law clearly does not contemplate this type of outside-the-box type of “defect.”  It is a court’s constitutional job per Marbury v. Madison to interpret this Pennsylvania law as inapplicable to this case because the defect was not within the type for which the law makes sense, and, since we presume laws and lawmakers make sense, the law simply cannot have been meant to apply to this situation.  Simple, precise … and fair.  Is there really any other principled and fair way to see it?  Isn’t fair what it’s all about?  Come on now Pennsylvania!

 

About Edward B. Batista

The Law Office Of Edward B. Batista. Offices in Sacramento and Nevada City. Specializing in estate litigation, estate planning, wills/trusts, probate, contracts and real estate.
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