Kansas - Buyer Beware Even When Seller Allegedly Makes Affirmative Misrepresentations
03/14/08
Experienced buyer purchased multifamily dwelling. Buyer’s Acknowledgment and Agreement contained a clause which stated, “I specifically represent that there are no important representations concerning the condition or value of the Property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.” No such separate writing, signed by seller or broker, listing any such “important representations” was ever given by seller or broker. Other contractual provisions expressly stated that buyer had right to independent inspections and that buyer would rely upon inspections and not upon disclosure statements given by seller. Buyer conducted inspections, was put on notice of potential defects, which seller claimed had been fixed. No subsequent separate writing listing such representations by seller was provided.
“It is clear that Kansas courts have adopted a ‘buyer beware’ standard regarding sellers’ disclosures. In addition, the Alires court made it abundantly clear that a buyer of real estate can not reasonably rely on representations of a seller when the truth or falsity of the representation would have been discovered by an inspection of the property and the misrepresentations were made before or as part of the contract in which the buyer contracted for the right to inspect, agreed that the statements of the seller were not warranties, and acknowledged that the seller’s disclosure statement was not a substitute for any inspection that the buyer may have wished to obtain. 277 Kan. at 411-12. Under the facts of this case, the right to rely on representations made in the disclosure statement does not exist where a purchaser chooses to inspect the property before purchase and, in making such inspection, learns of a defect.” Katzenmeier v. Oppenlander, Docket No. 98,025 (Ks.Ct.App. March 14, 2008).
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