Plaintiff discovered the house he had purchased from defendant was infested with termites. Plaintiff sued defendant for alleged fraudulent concealment of the dangerous condition of the home.
A seller is not liable for failing to disclose a non-apparent defect known to him or her, but of which the buyer is unaware.
Neil W. Swinton (plaintiff) purchased a home from Whitinsville Savings Bank (“Whitinsville”) (defendant). Swinton later discovered the house was infested with termites. He incurred great expense for the repairs and installation of termite control to prevent the loss of the house. Swinton brought suit, alleging that Whitinsville was aware of the condition of the home when it was sold.
Whether a seller is liable for failing to disclose a non-apparent defect known to him or her, but of which the buyer is unaware?
No. This was an arm’s length transaction and Whitinsville had no duty to disclose any non-apparent defects of the home. The order sustaining the demurrer is affirmed.
If Whitinsville is liable, then so is every seller who failed to disclose any unseen defect known to him or her and which the buyer failed to discover. The law cannot impose liability “upon the frailties of human nature.” Here, the parties made a business deal at arm’s length. There was no falsehood made by Whitinsville. Additionally, Whitinsville did not do anything to prevent Swinton from acquiring information as to the condition of the house. As adopted in the Restatement of Torts § 551, the rule of non-liability for bare nondisclosure is the prevailing law in this state.