CH 5 Condition of the Property Flashcards
In Perfect v. McAndrew what was the main issue?
Did the parties intended the sale to be “in gross” or price per acre (where the survey showed the property was more acres than told)?
What type of sale (in gross or price per acre) does “More or Less” in a land description indicate?
It indicates sale in gross, but it is not determinative.
What type of sale (in gross or price per acre) is indicated if there is a lump sum price for the property?
An in gross sale
What does contract language like: requiring Seller to “either repair defects in a manner acceptable to Buyer or provide other assurances reasonably acceptable to buyer that the defects will be repaired” probably require?
Requires that buyer’s satisfaction with any proposed repairs (to the septic systems) before buyer had to move forward with the contract.
Rule on duty to disclose and producing accurate information generally?
Sometimes there is not a duty to disclose, but when you do disclose, even in the absence of such duty, the disclosure should be truthful (producing all perc tests not just 2 out of 30).
Rule on duty to disclose, generally?
There is a duty to disclose material defects with the property (like it being a meth lab)
Rule on duty to disclose from an affirmative inquiry?
Failing a disclosure in the face of buyer’s affirmative inquiry with justifiable reliance is the same as misrepresenting a material fact.
What is a patent defect?
A defect which is open, apparent, and readily observable.
Is there a duty to disclose patent defects?
No, because caveat emptor (buyer beware), applies (unless you lie to someone’s face when there is an affirmative inquiry)
What is a latent defect?
A defect which is not readily observable.
A seller is more/less likely to have a duty to disclose latent defects.
MORE (especially if the buyer makes an affirmative inquiry)
Rule on physical v. psychological defects, generally?
There is a distinction between the two, and psychological defects are very difficult to use to rescind a deal.
Rule of psychological defects in Arkansas?
In Arkansas, psychological defects are NOT material and do NOT have to be disclosed (absent an inquiry).
What is the difference with residential and commercial properties in respect to the parties?
In commercial transactions, we are dealing with sophisticated parties and often attorneys.
What do implied warranties arise from?
They arise from the situation or context in which a transaction takes place.
Many implied warranties are____________ protection related.
consumer
Big implied warranty in Arkansas is?
The implied warranty for new constructions.
How long is the implied warranty for new constructions in Arkansas?
5 years, and it can be contracted for less but not more (unless there is fraudulent concealment which extends the term).
What is the point of an implied warranty?
Protect innocent buyers and hold builders responsible for their work.
Is there a privity requirement to sue a builder for an implied warranty on a new construction?
there is no privity requirement.
