Thought Leadership

The New Jersey Appellate Division recently affirmed summary judgment for a home seller, her brokerage and agent, and a home inspector. The court found that the buyer failed to raise any genuine issue of material fact regarding alleged misrepresentations about the property’s sewer connection or the existence of a buried septic tank. Although the opinion is unreported, the court grounded its analysis in published New Jersey authority that continues to define the obligations of real estate professionals and home inspectors in nondisclosure cases.

In Park v. Clemmons, A-1440-23, the buyer purchased a home in 2014. The Seller’s Property Condition Disclosure Statement and the home inspection report each stated that the home appeared to be connected to the municipal sewer system. All parties denied knowledge of a septic tank. Six years later, the buyer discovered an abandoned underground tank during renovation and sued for violations of the Consumer Fraud Act, common law fraud and breach of contract.

Since the seller was a nonprofessional, the court applied the long standing principles from Byrne v. Weichert Realtors, 290 N. J. Super. 126 (App. Div. 1996), and Zaman v. Felton, 219 N. J. 199 (2014), which limit the Consumer Fraud Act liability to commercial sellers. The court, therefore, evaluated only the common law fraud and contract claims and found no evidence of falsity or knowledge, and no basis to infer reckless disregard for the truth.

The central issue was whether the property lacked a municipal sewer connection and whether any defendant knew or should have known of the buried tank. The record established a 1974 municipal approval for sewer connection, tax bills that included sewer charges and the buyer’s own 2020 permit application to replace, rather than install, the sewer line. The court held that the buyer offered no evidence capable of rebutting these objective records. The mere existence of an abandoned tank did not demonstrate that the municipal connection was absent. The buyer also failed to retain an expert after the trial court found one was necessary to prove any defect, and this omission was fatal to his misrepresentation theories. In addition, the agreement of sale contained standard as-is language, a non-survival clause for seller representations and a clear inspection right—all of which defeated the buyer’s contract-based claims.

The court, likewise, affirmed summary judgment for the home inspector. The inspection contract limited the inspection to visible and accessible conditions, and the buyer acknowledged that no visible indicators of a septic system were present. The court also applied the four-year statute of limitations for inspection claims, rendering the buyer’s suit untimely by two years.

Although unreported, Park reflects well settled principles in New Jersey real estate law. A seller, broker or agent is not responsible simply because a latent condition surfaces years after closing. 

Courts continue to heavily rely on municipal records, transactional documents and other objective information when assessing the accuracy of a disclosure. Fraud claims still require real proof that a statement was false when made. Home inspection agreements that define the scope of the work remain enforceable, and claims against inspectors must be brought within the statutory period. In the end, the court’s reliance on established, published precedent reinforces the defenses that sellers, brokers, agents and inspection professionals have traditionally relied upon in these types of cases.

^{Legal Update for Real Estate E&O – February 2026, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2026 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact MEDeSatnick@mdwcg.com}