On appeal from Superior Court, Law Division, Morris County.
Antell, Baime and Thomas. The opinion of the court was delivered by Thomas, J.s.c., temporarily assigned.
The opinion of the court was delivered by
THOMAS, J.S.C., temporarily assigned.
Plaintiffs' action for damages to repair a malfunctioning septic system was dismissed at the Conclusion of plaintiffs' proofs. This appeal resulted and we reverse.
Plaintiffs contracted to purchase a 45-year-old single family home from defendant Lent. The parties knew when the purchase contract was signed that the septic system was not working. Therefore, a handwritten addendum was added requiring the septic system to be brought up to township codes by seller prior to closing. Title closed on December 30, 1985 with $500.00 held in escrow to be used to complete surface grading and seeding over the new septic system. Prior to closing, defendant Lent produced a certificate dated December 9, 1985 from the Township Board of Health certifying that the work done to the septic system by codefendant Zimmer had been performed according to code. In fact, it had not. Plaintiffs relied on the certificate and accepted a deed and closed title. As it turns out, none of the percolation tests, upon which the effectiveness of a septic system is Judged, passed the minimum Township code standards. In fact, no measurable
rate of percolation was obtained at all. In spite of the fact that the septic system did not comply with the Township code, a Certificate of Compliance was issued.
Shortly after moving into the home, plaintiffs began experiencing problems with raw sewage flowing from the septic tank onto the ground surface. Plaintiffs contacted defendant Zimmer who offered a number of reasons as to why the system was not working. However, each "correction" completely failed to ameliorate the problem. The problem became so acute, the Township cited plaintiff for violation of the health code for discharging sewage onto the ground. Finally, defendant Zimmer conceded that only a raised bed system would satisfactorily make the system work, an expensive proposition which neither of the defendants wished to pay for.
Plaintiffs obtained the services of a civil engineer to examine the system. He found many problems contributing to the system's inability to function. They included a ground water condition which was virtually level with the surface and a soil profile containing only impermeable material. He conducted percolation tests which confirmed the results improperly approved by the Township i.e., there was no measurable rate of percolation. The septic tank itself was opened. Nothing was found wrong with the tank but because the surrounding soil conditions would not accept effluent, the tank was doing just that, performing as a tank. When its 1,000 gallon capacity was reached, raw sewage overflowed from the top onto the ground surface. Plaintiffs' expert concluded the system, as installed, stood no chance of working from the first instance. He concurred with defendant Zimmer's admission that a raised bed system would have to be installed. Plaintiffs have submitted plans to repair the system and have received a permit approving these plans from the Township. Plaintiffs offered proof as to what this would cost.
The trial Judge granted defendant's motions to dismiss at the Conclusion of plaintiffs' proofs, finding no fraud, warranty, or
breach of contract. He also held that the acceptance of the deed by plaintiffs terminated any further rights between the parties, ...