Reminder From NY Appellate Court: In Real Estate, Rely Only on the Written Contract

A New York Appellate Court, in a recent decision, reminds us that in a real estate transaction, the parties should rely only on the written contract. The case is Friedman v. Kagan, 2008 Slip Op. 07624 (2d Dep’t).

The plaintiffs commenced the lawsuit because, having purchased a single family residence, they claimed the defendant/sellers dissuaded them from having the basement professionally inspected for mold. The house was contaminated with “toxic” mold. But, the written contract included a disclaimer that the purchasers were not relying on oral representations and the house was being sold “as is.”


The trial court granted summary judgment to the defendants and the appellate court affirmed. For our non-lawyer readers, that means decision for the defendants without a trial because there are no facts at issue. The facts not at issue are that the written contract disclaimed any reliance of oral representations.


The plaintiffs tried an alternative theory that the mold was fraudulently concealed but that went no where either.


We shouldn’t need the reminders but, being human, repetition is helpful: a real estate contract has to be in writing. A disclaimer, similar to that found in this case, tends to be the norm. Thus, the parties should not rely on oral representation, they should “get it in writing.”


Image: Slime Mold from Wikipedia Commons