CAVEAT EMPTOR (“BUYER BEWARE!”) EXCEPTIONS

There is value to a seller when it comes to entering into an as-is transaction and stating that the seller has NOT made any representation or warranty, all such representations or warranties are disclaimed, the buyer is NOT relying on any representation of the seller, and that the buyer is relying on its own inspection of the property.   This shifts the onus to the buyer to undertake the inspection or due diligence it needs to take relating to the property it wants to buy.

With respect to commercial property transactions:

The doctrine of caveat emptor, which Florida courts continue to apply, “places the duty to examine and judge the value and condition of the property solely on the buyer and protects the seller from liability for any defects.”  There are, however, three exceptions to this doctrine, including: “1) where some artifice or trick has been employed to prevent the purchaser from making independent inquiry; 2) where the other party does not have equal opportunity to become apprised of the fact; and, 3) where a party undertakes to disclose facts and fails to disclose the whole truth.” 

Florida Holding 4800, LLC v. Lauderhill Mall Investment, LLC, 46 Fla. L. Weekly D785b (Fla. 4th DCA 2021).

These three exceptions to caveat emptor, or the doctrine of buyer beware, are not easy to prove because it places a burden on a buyer to prove an active effort from the seller to conceal a material fact to skirt around the as-is language.  Again, this is not an easy burden to prove.

By way of example, in Florida Holding 4800, the buyer purchased commercial property and sued the seller after discovering roof leaks, HVAC issues, and mold.  The lawsuit was predicated on the seller’s misrepresentation or concealment of the condition of the property.  The problem was that the buyer purchased the property as-is and contractually agreed there were no representations or warranties from the buyer.  The trial court granted summary judgment in favor of the seller because of caveat emptor’s application to commercial transactions.

The appellate court affirmed the trial court because there was no evidence that the “Seller’s actions prevented it from conducting a thorough inspection of the property or that, but for Seller’s conduct, Buyer would have discovered that the roof was defective.”  Florida Holding 4800, supra.   The appellate court explained:

Unable to establish an exception to caveat emptor, Buyer is left with the PSA’s [purchase sale agreement] express language providing that Buyer was purchasing the property “based solely on Buyer’s own inspection, investigation and evaluation,” and that Seller made no representations regarding the property’s condition, or if it did, Buyer agreed it was not relying upon such representations. By these very terms, Buyer waived any claim of fraud on the undisputed material facts in this case.

Florida Holding 4800, supra.

As you can see, the doctrine of caveat emptor has teeth.  Likewise, specific language in as-is transactions has teeth and it is important to include this disclaiming language in as-is transactions, even if the transaction does not concern real property.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

CLAIMS BASED ON MISREPRESENTATION MUST BE INDEPENDENT OF CLAIMS BASED ON A CONTRACTUAL BREACH

While misrepresentation-type tort claims (fraudulent inducement, fraudulent misrepresentation, or negligent misrepresentation) sometimes sound like attractive claims, they are oftentimes not appropriate claims, particularly when there is a contract between the parties.  The reason being is the the same damages for the breach of contract and misrepresentation-type tort claims are pursued and the claims rely on the same conduct as the breach of contract claim.  This is wrong.  As explained further in this article, the misrepresentation forming the fraudulent inducement, fraudulent misrepresentation, or negligent misrepresentation claim (1) must be pled with specificity in the operative pleading (complaint or counter-claim), (2) are not a substitute or way to navigate around the burden of proof of a breach of contract claim, and (3) must be based on conduct independent of the breaches of contract, i.e., a breach of the actual contract is not a misrepresentation.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

DEMONSTRATING A FRAUDULENT INDUCEMENT CLAIM OR DEFENSE

In a recent case, Florida’s Fourth District Court of Appeal reversed a trial court’s denial of a motion for a temporary injunction sought by an employer due to an independent contractor’s violation of a non-compete and non-solicitation provision in an employment / independent contractor agreement (“employment agreement”). You can find more on this case and the enforcement of the non-compete and non-solicitation clause here.

A worthy discussion in this case centers on the independent contractor’s fraudulent inducement defense. Specifically, the independent contractor, as a defense to the injunction, claimed that he was fraudulently induced into entering into the employment agreement because the employer promised he would make a certain amount of money and he would work predominantly in one geographic location. The employment agreement contained NO such representations. Instead, the employment agreement contained a fee and services schedule and the independent contractor would be compensated based on that schedule. It stated nothing as to the independent contractor only having to work, or predominantly working, in one geographic location, or that the independent contractor would be guaranteed “X” amount of money working in that location. Why is this important?

In order to support a claim or defense of fraudulent inducement, a party must prove the following elements: “1) a false statement concerning a material fact, 2) knowledge by the person making the statement that the representation is false, 3) intent by the person making the statement that the representation will induce another to act upon it, and 4) [justifiable] reliance on the representation to the injury of the other party.” GEICO General Ins. Co. v. Hoy, 136 So.3d 647, 651 (Fla. 2d DCA 2013 (citation omitted); see also Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1055 (Fla. 4th DCA 1999). “[T]o satisfy the element of an injury, the claimant must establish that he or she has sustained pecuniary damage or injury by which he or she has been placed in a worse position than he or she would have been absent the fraud.” Hoy, 136 So.3d at 651.

However, and this is a BIG however, “[A] party cannot recover in fraud for oral misrepresentations that are [covered or] later contradicted in a written contract.” Picture It Sold Photography, LLC v. Bunkelman, 45 Fla. L. Weekly D74a (Fla. 4th DCA 2020).

The employment agreement stated it was the entire agreement between the parties. (There is a reason why agreements contain language that states that the agreement is the final and complete agreement between the parties and supersedes prior agreements and representations between the parties. Such provision is not for naught!)

Hence, the independent contractor’s claim that he was induced into entering the agreement based on making a certain amount of money was covered by the agreement that contained a schedule for services and the corresponding fees.  As mentioned, the agreement did not promise a certain amount of money and/or the money would be based on the independent contractor working in a certain location.   In other words, you cannot claim fraud in the inducement if your contract contradicts what you are claiming or the agreement covers that issue.

Further, even if there was an argument that there were misrepresentations as to money and location, the independent contractor would still need to demonstrate that he justifiably relied on the misrepresentations. “Without justifiable reliance, there can be no actionable fraud.” Bunkelman, supra (citation omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.