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Voorde Poorte v. Evans

    Brief Fact Summary. Art and Ann Voorde Poorte, (Plaintiffs) executed a real estate purchase and sale agreement for the sale of land and a mobile home to William and Jeannette Evans, (Defendants). Plaintiffs brought this action for damages against Defendants following a fire that resulted in the loss of their mobile home. Defendants successfully moved for summary judgment and Plaintiffs appeal.

    Synopsis of Rule of Law. Early possession does not have a legal affect on contractual provisions that allocate risk of loss.

    Facts. Defendants entered into a real estate purchase and sale agreement for the purchase of Plaintiff’s land and mobile home. The contract provided that Defendants’ were entitled to possession on closing and if the property was destroyed by fire, Defendants could terminate the agreement. Prior to closing, Defendants took possession, moved employees into the mobile home and restored electrical service. Soon after the mobile home was destroyed by a fire. A fireman who investigated the cause of the fire believed that an electrical device that overheated or shorted out caused the fire. After the fire, Defendants terminated the agreement.

    Issue. Whether risk of loss should follow possession.

    Held. No. The risk of loss remained with Plaintiffs even if Defendant’s occupancy of the mobile home was nonpermissive.

    Discussion. The weight of authority supports the enforcement of contractual provisions allocating risk of loss. Here, there is disagreement as to whether Plaintiffs knew or consented to Defendants’ early possession of the mobile home. However, that dispute is not a genuine issue of material fact. Risk of loss remained with Plaintiffs even if we assume Defendants’ occupancy was non permissive. Early possession of the mobile home did not affect the contract provision that placed the risk of loss with Plaintiff.


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