Donnelly v. Taylor

786 N.E.2d 119 (2002)

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Nature of the Case

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Facts

Ds listed their house for sale. The house was purchased by Ps. Ps never talked directly to Ds. All of their conversations went through either the real estate agent or the Ds' son. The agreement of sale contained the following clause: 'IN THE ABSENCE OF WRITTEN NOTICE OF ANY DEFICIENCY, FROM PURCHASER PRIOR TO CLOSING, PURCHASER UNDERSTANDS THAT THEY WILL TAKE THE PROPERTY IN AN 'AS IS' CONDITION.' The house was inspected by a V.A. inspector, but Ps decided not to have the house inspected by anyone other than the V.A. except for a termite inspection. The termite inspection was done and did not reveal any termite infestation. Approximately two weeks after their possession began, they started to hear noises in the walls of the house. They called out a pest-control service. The employee of the pest-control service told them they had either mice or squirrels in their home. Nothing was caught. In January to early February, there was a warm spell. It was during that warm spell that P found a bat on the floor of a shower in the basement. She called for her husband. They removed the bat and notified the pest-control service. The pest-control service informed them that the house had bats, living in the walls. In their now thorough inspections, Ps found pieces of foil in the registers of the forced-air heating system, which they assume were placed there to make noise to keep the bats out of the vents. They also found a boarded-up fireplace when they looked at the house prior to purchasing and, when they inquired, were told by the real estate agent that Ds never used the fireplace. They also found boards nailed up in the basement. Ps sued Ds and Ds moves for summary judgment.