Biro v. Matz
132 Conn. App. 272
Conn. App. Ct.2011Background
- Commercial real estate sale in Danbury; deed delivered to buyers; buyers allege breach of contract, negligent/intentional misrepresentation, fraudulent inducement, and CUTPA; trial court granted summary judgment for sellers; contract stated sale “as is, with all faults” and required buyers to rely on own investigations; closure merged terms into the deed; title affidavits and survey update were incomplete; occupancy certificate missing for some improvements; buyers later attempted to resell to R & J Electrical but closing never occurred.
- Two sellers (Matz and Luning) were non-developers who previously owned and operated a trophy manufacturing business at the premises; the contemporaneous expansion in 1980 allegedly lacked a満 occupancy certificate; the sale contract contained survival language in §5 and a zoning-related §8, but no explicit survival language for §8.
- Closing conveyed title; §5 contained “as is” and “with all faults” language; §8 purportedly imposed governmental restrictions but §8 lacked survival language; relief sought focused on alleged occupancy and zoning issues.
- Buyers admitted they inspected and relied on their own diligence per the contract; the deed replaced the contract terms, triggering merger by deed; the court held §5 survived while §8 did not.
- The appellate court analyzed summary judgment standard, merger by deed doctrine, and the scope of survival clauses to determine whether any contract terms persisted post-closing and governed occupancy-related liabilities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Survival of contract terms after closing | §8 survives; violations persisted | Only §5 survives; deed merged terms | §5 survives, §8 merged with deed; no breach from conveyance without occupancy |
| Effect of as‑is clause on occupancy defect claim | As‑is shields seller from occupancy-related liability | As‑is applies to condition; §5(d) broadens post-closing liabilities | As‑is clause enforced; buyers cannot claim occupancy breach |
| Negligent/intentional misrepresentation viability | Sellers knew lack of occupancy; misrepresentation occurred | No knowledge of missing occupancy; reliance not justified | No genuine issue of fact; summary judgment for sellers on misrepresentation claims |
| CUTPA applicability to noncommercial real estate sellers | CUTPA applies to deceptive practices in sale | Sellers not in the business of selling real estate; CUTPA inapplicable | CUTPA inapplicable; no unfair trade practice |
| Affirmative representations in title documents (survey update) | Survey update implied occupancy/alterations compliance | Survey update was incomplete and non-representative | No affirmative representation; survey update did not create liability |
Key Cases Cited
- Powers v. Olson, 252 Conn. 98 (Conn. 2000) (deed merges contract terms absent survival language)
- Knight v. Breckheimer, 3 Conn.App. 487 (Conn. App. 1985) (deed supersedes contract terms; merger doctrine)
- Mongillo v. Commissioner of Transportation, 214 Conn. 225 (Conn. 1990) (merger by deed; express terms may survive if reserved)
- McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486 (Conn. 2006) (reliance on contractual provisions; self-inspection duty; as is)
- Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675 (Conn. 2003) (reliance and representations in real property transactions)
- Santana v. Hartford, 94 Conn.App. 445 (Conn. 2006) (contract interpretation; ordinary meaning applies)
- Holly Hill Holdings v. Lowman, 226 Conn. 748 (Conn. 1993) (as‑is language; burden shift to buyer)
- Best Friends Pet Care, Inc. v. Design Learned, Inc., 77 Conn.App. 167 (Conn. 2003) (expressio unius est exclusio alterius in contract)