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This article addresses suits brought by individuals injured on a property against the prior owner of the property. New Jersey courts, overall, permit a seller to sell the land with potential liabilities, with some exceptions.

Overall, the courts in New Jersey follow the general principle that once a purchaser of real estate has taken possession, the seller is not subject to liability for bodily harm caused to the buyer or others while upon the premises by any dangerous condition, whether natural or artificial, which existed at the time of sale. 2 Restatement, Torts §352, p. 961 (1934); 2 Harper and James, Law of Torts, §27, 18, p. 1518 (1956); Prosser, Torts (2ed. 1955), §79, p. 462; Annotation, 8 A.L.R. 2d 218, 220 (1940); 65 C.J.S., Negligence, §93, p. 607 (1950). None of these authorities appear to find different legal consequences when the buyer himself created the dangerous condition or, as in the case of failure to repair, simply permitted the condition to exist. Sarnacindro v. Lake Developers, Inc., et. al., 555 N.J. Super. 475, 479 (1959).

Whatever measure of logic there may be in support of the argument so made, the cases have consistently refused to hold a vendor of real estate liable to a third party for injuries suffered by reason of a dangerous condition of the premises created while the vendor still owned and as in possession.

This decision to not attribute liability for personal injuries to a seller of property, after it has been transferred to a buyer, is further supported by The Restatement of the Law, 2d Torts, §352 as follows:

Except as stated in §353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.

Furthermore, the comment to §352 is telling. The comment, in relevant part, states as follows:

This is perhaps because great importance always has been attached to the deed of conveyance, which is taken to represent the full agreement of the parties, and to exclude all other terms and liabilities. The vendee is required to make his own inspection of the premises and the vendor is not responsible to him for their defective condition, existing at the time of transfer. Still less is he liable to any third person who may come upon the land, even though such entry is in the right of the vendee.

Section 352 of the Restatement references §353, which would essentially attribute liability to a vendor of land "who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land…" Restatement of Law, 2d Torts §353.

The Appellate Division addressed the issue of potential liability of a prior owner of land for an allegedly defective condition existing on the property after sale in the matter of Cogliati v. Echo High Frequency Corp., 181 N.J. Super. 579 (App. Div. 1981). Specifically, the Cogliati opinion states as follows:

…the prior owner, who argues that as a matter of law the liability, if any, of a prior owner for a dangerous condition existing on the property terminates upon his conveyance of title. There are exceptions, however, that a general rule, one of which is the continued liability of the prior owner for a reasonable time after the sale in respect of a dangerous condition created by him and in respect, as well, of a nuisance created by him which involves an unreasonable risk of harm to the public.

The law places a significant burden of proof upon plaintiffs attempting to attribute liability to a former property owner. The Cogliati opinion, for instance, requires a showing that the dangerous condition was created by the former owner. Cases of this type may be defended by establishing through discovery that no inspection was done prior to sale of the property that revealed a defective condition. Also, a defense may include the fact that no public entity inspected the property prior to sale and found any unsafe conditions and/or issued any citations to the former owner prior to sale. Testimony concerning the purchasers' access to the property prior to sale and their ability to inspect and/or arrange for a professional inspection may also be helpful.

* Art is an associate in our Cherry Hill, New Jersey office. He can be reached at (856) 414-6316 or afwheeler@mdwcg.com.