Reeves v. WeberReeves v. Weber
Jack Ricci, Metairie, for defendant-appellant Merrill Lynch Realty, Inc., Stan Weber, Carolyn Edwards and Bonnie B. Richardson.
Eddie J. Lambert, William Downing, Baton Rouge, Charles Barbera, Metairie, Robert W. Troyer, Ponchatoula, for Lincoln Financial Corp.
Before SAVOIE, CRAIN and JOHN S. COVINGTON, JJ.
CRAIN, Judge.
This is an appeal from a judgment awarding damages to a purchaser of a house for the failure of the real estate agent to disclose information of termite damage when the agent had such information.
On November 15, 1982, Mr. and Mrs. Horace Reeves purchased a house in Ponchatoula, Louisiana. One of the forms signed that day by Mr. and Mrs. Reeves was a certificate of inspection and treatment that stated that the house was termite
The appellant‘s assignments of error are:
1) that the trial court erred in finding that the real estate agent knew of the termite damage.
2) that the trial court erred in finding that the plaintiff was not aware of the termite problem.
3) that the proper prescriptive period for this action was not the 10 year period of
La.Civ.Code art. 3499 , as used by the trial court, but should beLa.Civ.Code 3492 , which provides a 1 year liberative prescriptive period for delictual actions.
The duties of a real estate broker are an unsettled area of law in Louisiana.
Some cases have imposed common mandatary status on the broker at the time he has found a prospective purchaser. Uhlich v. Medallion Realty, Inc., 334 So.2d 788 (La.App. 4 Cir.), writ denied, 338 So.2d 701 (La.1976); Treadaway v. Piazza, 156 So.2d 328 (La.App. 4 Cir.1963); Martin v. Fontenot, 27 So.2d 457 (La.App. 1 Cir.1946). Treadaway and Martin deal with contractual disputes concerning the agent‘s commission and not with the mandatary relationship. Later cases from the same circuits specify that the earlier cases were not classifying the relationship as mandate but were only concerned with the recognition of a fiduciary duty. As stated in Mintz & Mintz Realty Co., Inc. v. Sturm, 419 So.2d 981 (La.App. 4 Cir.), writ denied, 423 So.2d 1163 and 423 So.2d 1164 (La.1982): “A real estate broker or salesman (agent) is not considered to be an agent within the purview of the mandate provisions contained in
Since the relationship between brokervendor-purchaser is not mandate, the trial court‘s assessment of the real estate agent as being an agent of the purchaser for purposes of prescription under
“Brokers are not responsible for events which arise in the affairs in which they are employed; they are only, as other agents, answerable for fraud or faults.”
Proof of fraud must be clearly and convincingly established and not merely by a preponderance of the evidence. The evidence here reflects that the real estate broker/agent knew of a defect. However, it is difficult to conclude there was a failure to disclose it to the plaintiffs since the certificate disclosing the termite problem was signed, but supposedly not read, by the plaintiffs. In any event the facts do not indicate an intentional misrepresentation necessary for the finding of fraud. Josephs v. Austin, 420 So.2d 1181, 1184 (La.App. 5 Cir.1982), writ denied, 427 So.2d 870 (La.1983). The real estate agent here admitted knowledge of the language on the termite certificate but thought that the problem had been corrected by the treatment. Fraud was neither alleged by the plaintiff nor found by the trial court. This issue has not been raised on appeal. Therefore, the purchaser‘s action here should be limited to negligent misrepresentation.
The broker/agent owes a specific duty to communicate accurate information to seller or purchaser, or both when the circumstances warrant. Braydon, 462 So.2d at 263; Josephs, 420 So.2d at 1185; Guidry v. Barras, 368 So.2d 1129 (La.App. 3 Cir.1979). The real estate broker/agent owes a duty to disclose any material defects of which he is aware to the purchaser. Desoto v. Ellis, 393 So.2d 847 (La.App. 2 Cir.1981); Mintz, at 419 So.2d 983; Guidry, at 368 So.2d 1133. An action by the purchaser, based on a real estate agent‘s failure to disclose a known defect in the premises, stems from a general duty owed by the broker/agent to the public at large. The action for failing to disclose arises ex delicto, rather than from contract. Since more than one year elapsed between discovery of the defective condition and filing of suit, the action has prescribed. Payne v. Trichel, 397 So.2d 16 (La.App. 3 Cir. 1981); Kearney v. Maloney, 296 So.2d 865 (La.App. 4 Cir.1974).
Without making any factual determination that there was negligent misrepresentation, we find the present suit is based in tort. Mr. Reeves admitted that he discovered the termite damage in February 1983 and no action was taken until May 22, 1984, more than a year from discovery and more than a year and a half after purchase. The peremptory exception of prescription, filed by the real estate agent, should have been sustained.
Since we find grounds to reverse based on appellant‘s assignment of error number three, we need not examine the remaining assignments of error. All costs are to be paid by appellees.
REVERSED AND RENDERED.