Texas Court Says AS-IS Clause Possibly Unenforceable

October 7, 2019

The Third District Court of Appeals in Austin recently held that an as-is clause in a purchase contract may be unenforceable. The Court found that there was a question of fact as to whether or not the seller fraudulently induced the purchaser to agree to the as-is clause by failing to disclose certain information about the property.

The case involved the sale of a residential property where the seller had owned the property for over 30 years and was well-aware of the condition and history of the property.  Seller provided a Seller’s Disclosure Notice that indicated there were no previous fires and no known encroachments on the property. In fact, there had been a fire in 2007 and the neighbor’s fence was encroaching on the property. The purchaser had an inspection performed, which identified several defects in the property, but the inspection did not reveal the previous fire or the encroachment of the neighbor’s fence. After the inspection, the purchaser proceeded to closing.

Two years later, the purchaser filed suit against the seller regarding the condition of the property. The purchaser argued that had the defects been disclosed, she would not have entered into the as-is purchase contract. The Court held that the purchaser had sufficient evidence to support her claim that she was fraudulently induced to enter into the as-is contract due to the seller’s failure to disclose the fire and the encroachment.

Therefore, while an as-is clause will generally negate a claim against the seller regarding the condition of the property, this Court seems to require a seller to disclose known defects about the property in order to take advantage of the protection of the as-is clause.  It is unknown if this rationale would translate to a commercial contract situation where the buyer is deemed to be more sophisticated.

Ivy v. Garcia, 2019 Tex. App. LEXIS 6962 (3rd Dist. 2019)

Partial performance can overcome the absence of a written contract

November 15, 2017

In Thomas v. Miller, the lack of a written contract became the focal point of the dispute. Leorris Thomas verbally agreed to sell two acres of land to the Millers in exchange for payment of the amount remaining on Thomas’s mortgage. The Millers paid Thomas’s mortgage from 2004 to 2010 and made improvements to the property during that time. However, continual threats from Thomas caused the Millers to abandon the property in 2009. Thomas subsequently sold it to a third party.

The Millers sued and won their lawsuit against Thomas for breach of contract. Thomas appealed claiming the oral contract was unenforceable under the statute of frauds, which considers certain agreements unenforceable for a variety of reasons, including when they are not in writing.

The appellate court found the partial performance by the Millers was sufficient to trigger an exception to a statutory requirement for the contract to be in writing. It also found that refusing to enforce the contract would amount to a virtual fraud. The Millers relied on the contract to their substantial detriment, had no adequate remedy, and Thomas would reap an unearned benefit. The appellate court therefore affirmed the trial court’s ruling and enforced the oral contract.

Thomas v. Miller , 500 S.W.3d 601 (Tex. App.—Texarkana 2016, no pet.).

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