Opinion
No. CV03-0102346S
December 8, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiffs filed this four-count complaint arising out of their purchase of real property from the defendants. Count One, captioned as "Violation of C.G.S. § 20-327 (b)," the basic facts surrounding the purchase including representations made by the defendants in the statutorily mandated Residential Property Condition Disclosure Report to the effect that there were no water problems except in "extreme cases of prolonged heavy rains." Based on that representation and others, the plaintiffs purchased the property. Following the closing, however, the basement did experience water problems. The plaintiffs also discovered evidence of a previously existing sump pump, which, they allege, indicates that the defendants had prior knowledge of undisclosed water problems in the basement.
Count Two, "Fraudulent Misrepresentation" repeats essentially the same allegations as were contained in Count One and also alleges that the representations were untrue and known to be untrue by the defendants with the intent of inducing reliance thereon. Count Three, captioned as "Negligent Misrepresentation," makes the same factual allegations and claims that in their Disclosure Report, inter alia, the defendants negligently misrepresented the situation regarding water in the basement. Similarly, Count Four, styled as "Innocent Misrepresentation," recites the same basic facts and the failure to acknowledge water problems in the basement in their Disclosure Report and elsewhere, and claims that because of their ownership and possession of the property for some time prior to the sale and prior use of the sump pump, the defendants had a special means of knowledge of the basement and its condition.
The defendants have moved to strike Counts One, Three and Four of the complaint. As to Count One, they contend that there is no private right of action under General Statutes § 20-327 (b), the Uniform Property Disclosure Condition Act, and they cite to Steinhoff v. Woodward, 25 Conn.L.Rptr. 241, Superior Court, Judicial District of New London at New London, CV 549302 (Aug. 5, 1999) (Martin, J.). As to Counts Three and Four, which sound in negligent and innocent misrepresentation, respectively, the defendants contend that following the passage of the Uniform Property Disclosure Condition Act, the plaintiffs' only possible remedy is for the fraudulent misrepresentation alleged in Count Two.
Resolution of all of the defendants' contentions can be had by reviewing Giametti v. Inspections, Inc., 76 Conn. App. 352, 824 A.2d 1 (2003), which post-dates Steinhoff v. Woodward by four years. In Giametti, the Appellate Court concluded that a plaintiff's remedy for a violation of § 20-327 (b) can only be for a knowing misrepresentation in the statutorily mandated Disclosure Report. The defendants also argue that because the third and fourth counts, styled as negligent misrepresentation and innocent misrepresentation, rely in significant part on the disclosures or lack of the same in the Residential Property Condition Disclosure Report, those counts, as presently formulated, do not state claims upon which relief may be granted as a matter of law.
As to the first count, the court in Giametti did not expressly address the question of whether § 20-327 (b) creates a private right of action. The clear implication of the court's opinion, however, is that violation of the disclosure requirements of § 20-327 (b) provides a basis of recovery against vendors who make knowing misrepresentations in their disclosures. "We hold that the plaintiff could have sought relief under this statute only for a knowing misrepresentation in the statutory report." Giametti, supra, 76 Conn. App. at 357. The opinion goes on to note that the "legislative history of § 20-327 (b) reinforces the conclusion that the information to be disclosed is limited to representations of fact about which the vendor has actual knowledge." Giametti, supra, 76 Conn. App. at 360. It is thus apparent that the Appellate Court assumed that a knowing misrepresentation in a Disclosure Report required by § 20-327 (b) would create a cause of action for misrepresentation. The Motion to Strike the First Count is therefore denied.
The court in Giametti also concluded that negligent and innocent misrepresentation in the sale of real property may be actionable as a matter of common law. The third and fourth counts, as presently drafted, make some allegations that might support common-law claims, but in significant part those counts rely on violations of the statute. Thus, although it may be possible for the plaintiffs to articulate causes of action based on negligent and innocent misrepresentation, such counts may not be premised on a violation of § 20-327 (b). For this reason, the third and fourth counts, as presently pleaded, must be stricken.
For the above reasons, the motion to strike is granted as to Counts Three and Four but denied as to Count One.
JONATHAN E. SILBERT, JUDGE.