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I am having a home built by Richmond American Homes. I signed

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I am having a home built by Richmond American Homes. I signed a contract in July, and construction on the home just began in November. I went to visit and see the progress being made, and I saw signs for a meeting that took place on Nov 17th, saying "STOP INTERMODAL NOW". Come to find out, my home that is being built is 1/2 mile away from a candidate site for a CSX intermodal. I immediately emailed, and then called my builder, and he admits that he knew about the CSX intermodal proposal, that signs have been up in various places at various times since February, and said that if I had asked him about him about those signs, he would've told me. I should point out that the "quick" way to the home site is through a business/retail park that is right off the interstate, and the signs when I saw them were from coming in the "back" way, through the residential side, and the builder admitted that "more signs may have been posted on the residential side", so it really does depend on which way you come from.

Firstly, I actually have a vision problem - documented through the DMV, so I rarely focus on reading signs not relevant to the road. The signs are posted in people's yards, like political voting signs, which is what I thought they were at first. Secondly, the number of signs was noticeable because of the public meeting. I would like to know can I get my 10k deposit back since he failed to disclose this to me? Can he legally rely on signs that are spontaneously posted as a form of disclosure? He had to disclose the proximity of the airport to me, and there are signs for that as well.
Submitted: 3 years ago.
Category: Legal
Expert:  Attorney 1 replied 3 years ago.
Hello, and welcome to JustAnswer!

Presuming that you hired the contractor to build a home on the lot you had previously purchased, the contractor would have no responsibility for telling you about the CSX intermodal, even if you had no other way of knowing about it. That said, your real estate broker might. If you bought the property at a time when the CSX intermodal was proposed, its existence would have had a bearing on your decision to purchase and the realtor either knew of that, or should have known of that, the realtor/broker would be liable to you.

I hope this information helps and that it saves you time and money by steering you away from the wrong direction to pursue.

Best of luck!

If you need more information, just let me know and I will be happy to continue to assist you.

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This communication contains general information, only, and does not constitute the provision of legal advice. Information provided herein is not intended to replace a detailed legal consultation, and does not create an attorney/client relationship.


Customer: replied 3 years ago.
No, I didn't purchase the land separately. The land (home site) and the home were purchased together through the builder (Richmond American Homes). I have not settled/ closed so I don't technically own the lot, or the structure being built on the lot. The builder required a 10k deposit in order to start building, which he has had since July. Also, he admitted that the signs have been up since Feb, so he definitely knew at the time that I signed, and doesn't deny that. His point is that the signs should've acted as the disclosure. With this additional information, can you tell me if the builder has a legal leg to stand on if he doesn't refund my 10k?
Expert:  Attorney 1 replied 3 years ago.
The builder only has an obligation to warn you of existing conditions he was aware you would not reasonably be able to ascertain upon a reasonable inspection. For a full-sighted person, the sings would have been a dead giveaway, and the builder wold have no liability. If the builder had reason to know that you could not see the signs and that they were not obvious to you, the builder could be found to have had the duty to warn you. Your question seemed to indicate that you have been to the property and driven past the signs. However, if you had never been to the property, the duty would have been the builder's. Also, if you got directions to the property from the builder, when coming to view it, and the builder had you come in the directions without the signs, then you may have evidence of intentional concealment, for which the builder would be liable. If the builder made any oral representations to you (quiet neighborhood, peaceful place to commune with nature, etc.), which is now blatantly false, you will have even more evidence that the concealment was intentional. Even if this was not in writing, any witnesses who may have been with you could testify in your favor, if it ever came down to it. Even without witnesses, records of prior potential purchasers, and their experiences with this builder would likely support your position in court, as well (at a later point down the road.

If you need more information, just let me know and I will be happy to continue to assist you.

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____________________________________________________________________

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Customer: replied 3 years ago.
Relist: Answer quality.
I would like to know specific laws that apply to my question. The answer given seems to imply that there are two laws in conflict - one where I would've had to have disclosed that I have a disability before a business transaction began and one that says that the home seller/builder (they are the same entity) didn't have to disclose something if there were signs that a normally sighted person could observe (which in itself seems illegit since the signs weren't consistently posted, nor were they in places that would be pertinent to driving/approaching the site).
Customer: replied 3 years ago.
Relist: Answer quality.
I would like to know specific laws that apply to my question. The answer given seems to imply that there are two laws in conflict - one where I would've had to have disclosed that I have a disability before a business transaction began and one that says that the home seller/builder (they are the same entity) didn't have to disclose something if there were signs that a normally sighted person could observe (which in itself seems illegit since the signs weren't consistently posted, nor were they in places that would be pertinent to driving/approaching the site).
Customer: replied 3 years ago.
Relist: Answer quality.
I would like to know specific laws that apply to my question. The answer given seems to imply that there are two laws in conflict - one where I would've had to have disclosed that I have a disability before a business transaction began and one that says that the home seller/builder (they are the same entity) didn't have to disclose something if there were signs that a normally sighted person could observe (which in itself seems illegit since the signs weren't consistently posted, nor were they in places that would be pertinent to driving/approaching the site).
Expert:  Attorney 1 replied 3 years ago.
See excerpt from :

RHEE v. HIGHLAND DEVELOPMENT CORPORATION

James RHEE, et al. v. HIGHLAND DEVELOPMENT CORPORATION, et al.

No. 1765, Sept. Term, 2007.

-- October 07, 2008



In Maryland, the essential elements of a cause of action for fraudulent concealment are:

“(1)  the defendant owed a duty to the plaintiff to disclose a material fact;  (2) the defendant failed to disclose that fact;  (3) the defendant intended to defraud or deceive the plaintiff;  (4) the plaintiff took action in justifiable reliance on the concealment;  and (5) the plaintiff suffered damages as a result of the defendant's concealment.”

 

Lloyd v. Gen. Motors Corp., 397 Md. 108, 138, 916 A.2d 257 (2007) (quoting Green v. H & R Block, 355 Md. 488, 525, 735 A.2d 1039 (1999)).   Each element must be proven by clear and convincing evidence.  Md. Envtl. Trust v. Gaynor, 370 Md. 89, 97, 803 A.2d 512 (2002).

 

 In the context of the sale of real property, non-disclosure of a material fact ordinarily is not actionable, but fraudulent concealment of a material fact is:

 

Non-disclosure is a failure to reveal facts.   It may exist where there is neither representation nor concealment.   Except in a few special types of transactions, such as insurance contracts and transactions between a fiduciary and his beneficiary, there is no general duty upon a party to a transaction to disclose facts to the other party.   To create a cause of action, concealment must have been intentional and effective-the hiding of a material fact with the attained object of creating or continuing a false impression as to that fact.   The affirmative suppression of the truth must have been with intent to deceive.

 

Fegeas v. Sherrill, 218 Md. 472, 476-77, 147 A.2d 223 (1958) (internal citations and quotations omitted) (emphasis added).

 

In discussing the fraudulent concealment of a cause of action, the Court of Appeals has observed:

 

“Absent a fiduciary relationship ․ a plaintiff seeking to establish fraudulent concealment must prove that the defendant took affirmative action to conceal the cause of action and that the plaintiff could not have discovered the cause of action despite the exercise of reasonable diligence and that ․ the affirmative act on the part of the defendant must ․ be some act intended to exclude suspicion and prevent injury, or there must be a duty on the part of the defendant to disclose such facts, if known.”

 

Id. (quoting Frederick Road v. Brown & Sturm, 360 Md. 76, 100 n. 14, 756 A.2d 963 (2000)) (citations omitted) (emphasis added).

 

 In other words, “fraudulent concealment-without any misrepresentation or duty to disclose-can constitute common-law fraud․ Although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does.”  United States v. Colton, 231 F.3d 890, 899 (4th Cir.2000).   This is so because, as the Supreme Court has explained, a fraudulent concealment is “equivalent to a false representation.”  Stewart v. Wyoming Cattle Ranche Co., 128 U.S. 383, 388, 9 S.Ct. 101, 32 L.Ed. 439 (1888).

 

See also Hoffman v. Stamper, 385 Md. 1, 28 n. 12, 867 A.2d 276 (2005) (fraud may consist of suppression of the truth as well the assertion of a falsehood);  Schnader v. Brooks, 150 Md. 52, 57-58, 132 A. 381 (1926) (concealment may amount to fraud “where it is effected by misleading and deceptive talk, acts, or conduct, or is accompanied by misrepresentations, or where, in addition to a party's silence, there is any statement, word, or act on his part, which tends affirmatively to the suppression of the truth, or to a covering up or disguising of the truth, or to a withdrawal or distraction of a party's attention from the real facts”);  Colton, supra, 231 F.3d at 898-99 (fraudulent concealment may be common-law fraud when the concealment consists of “deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter”);  Restatement (Second) of Torts § 550 (1977) (“One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.”);   W. Page Keeton et al., Prosser and Keeton on Torts § 106 (5th ed.   1984) (“Any words or acts which create a false impression covering up the truth, or which remove an opportunity that might otherwise have led to the discovery of a material fact ․ are classed as misrepresentation, no less than a verbal assurance that the fact is not true.”).   Cf. Sass v. Andrew, 152 Md.App. 406, 430, 832 A.2d 247 (2003) stating in dicta that, even in the absence of a duty to disclose, the suppression of facts “which materially qualify representations made to another” may support a claim for fraud (quoting Finch v. Hughes Aircraft Co., 57 Md.App. 190, 239, 469 A.2d 867 (1984)).

 

  Thus, in Maryland, a cause of action for fraudulent concealment will lie in favor of a purchaser of real property against the seller when, in the absence of any independent duty to disclose, the seller actively and with the intent to deceive conceals a material fact about the property;  the purchaser justifiably relies upon the concealment in buying the property;  and, as a proximate result, the purchaser suffers damages.   Here, apart from the disputed issues of extension of duty, materiality of defect, and damages, the factual allegations in the first amended complaint-that the appellees desecrated the cemetery and then affirmatively acted to hide its presence on Lot 20, intending to conceal, and in fact concealing, its presence-sufficiently state a cause of action for fraudulent concealment.  

 

See Elsey v. Lamkin, 156 Ky. 836, 838, 162 S.W. 106 (1914) (affirming judgment in favor of purchaser of real property against seller for fraud based upon the seller's concealing the existence of a cemetery on the property by disclosing the presence of one cemetery on the property and not the other, thereby “creating upon the mind of the vendee a false impression that full disclosure has been made and the whole truth told”).

 

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