Day on Torts

No negligence in home sale where seller did not know about sinkhole.

Where the seller of real property was found not liable for negligent misrepresentation, the trial court’s finding of liability for negligence was reversed, as “a seller’s liability for the failure to disclose such material facts in a real estate transaction is coextensive with a party’s liability for fraudulent or negligent misrepresentation.” (internal citation omitted).

In Baker v. Baskin, No. M2023-00433-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2024), the plaintiffs purchased a home from the defendants, who were husband and wife. The defendants had lived in the home for thirty-two years. Seven months before the sale, defendant husband noticed a dip in the ground while mowing. He investigated and found a small hole near a bush. The husband believed this hole was likely caused by the decayed roots of a tree he had previously removed. The husband filled the hole with two four-by-four posts, placed topsoil and a topsoil bag on top of it, then covered the area with soil and grass. In the months between finding the hole and closing the sale, the husband did not notice any additional problems despite riding his heavy lawn mower over the area many times. It was undisputed that the husband did not tell his wife about the hole.

The defendants did not disclose this hole in the documents related to the real estate sale. They also marked no on questions related to sinkholes or other soil problems. The contract the parties negotiated included an “as is” provision, and the plaintiff buyers signed a disclosure recommending a geotechnical engineer.

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