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Kotkin v. Aronson

SUPREME COURT OF NEW JERSEY


February 26, 2003

ROSS KOTKIN AND AUDREY KOTKIN, PLAINTIFFS-RESPONDENTS,
v.
BERNARD ARONSON AND ESTELLE ARONSON, DEFENDANTS-APPELLANTS.

On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

In August 2000, Estelle and Bernard Aronson entered into a contract to sell their home in Cherry Hill to Ross and Audrey Kotkin. The Kotkins deposited $10,000 in escrow upon signing a form real-estate-sales contract prepared by the Aronson's real estate agent. The contract provided the buyers with the right to have a home inspection covering a variety of areas, including "heating, air conditioning, plumbing, and electrical systems, foundation and structure, roof and flashing, possible environmental conditions affecting the property such as the presence of radon gas, formaldehyde gas, air-borne asbestos fibers, toxic chemicals, or other pollutants in the soil, air or water."

The contract also sets forth the parties' rights and obligations in the event "such inspection(s) reveals any defect in the area specified above[.]" When such a defect is found, the contract authorizes the buyers to terminate the agreement and obligates the sellers to refund the deposit monies, unless the sellers agreed, in writing, within five days, "to repair and/or replace same, as may be required, at the Seller's own cost and expense."

The Kotkins informed the Aronsons that the home inspection of the residence revealed the presence of radon. In response to that report, the Aronsons undertook remedial work that did not eliminate the radon but substantially lowered it to a level the Sellers believed to be safe. When the Aronsons refused the request to return the $10,000 deposit, the Kotkins instituted suit, seeking termination of the contract and a return of their deposit.

The Kotkins filed a motion for summary judgment, wh ich was granted. The motion judge concluded that because the contract did not refer to any specific level of radon gas but simply to the "presence of radon gas," the buyers were within their rights to terminate the contract. Because there were no triable issues of fact, judgment was entered against the Aronsons in the amount of $10,000.

On appeal, the Appellate Division affirmed the decision of the motion judge, explaining that "the parties were free to negotiate a specific level of radon as being acceptable, but did not. Indeed, the contract could have, but did not, even reference a 'safe' level of radon, which might have presented a triable issue of fact."

The Supreme Court granted certification.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in the per curiam opinion. Based on the clear language of the contract, the presence of radon gas revealed during a home inspection is a sufficient basis to terminate the real-estate-sales contract between the parties.

1. Sellers did not qualify the radon clause. Although mindful that all homes have some measurable level of radon gas, that cannot defeat the plain language of the unqualified radon clause. In order to avoid these types of disputes in the future, parties are encouraged to include language in their contracts specifying the level of radon necessary to trigger a buyer's right to terminate.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in this PER CURIAM opinion.

The opinion of the court was delivered by: Per Curiam

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the opinion below.)

Argued February 3, 2003

We affirm the judgment below, substantially for the reasons expressed in the opinion of the Appellate Division, reported at ___ N.J. Super. ___(2002). We add only these brief comments to amplify that opinion.

Plaintiffs and defendants are, respectively, intended buyers and sellers of a parcel of real estate, which includes a residential dwelling. The parties signed a form contract prepared by sellers' real estate agent. The contract accords buyers the right to inspect the dwelling in respect of "heating, air conditioning, plumbing and electrical systems, foundation and structure, roof and flashing, possible environmental conditions affecting the property such as presence of radon gas, formaldehyde gas, air-borne asbestos fibers, toxic chemicals or other pollutants in the soil, air or water." (Emphasis added). The same provision of the contract also sets forth the parties' rights and obligations in the event that "such inspection(s) reveals any defect in the area specified above[.]" When such defect is discovered, the contract authorizes buyers to terminate the agreement and obligates sellers to refund the deposit monies, unless sellers further agree "to repair and/or replace same, as may be required, at the Seller's own cost and expense."

Buyers informed sellers that an inspection of the dwelling had disclosed the presence of radon. Although sellers failed to eliminate the radon entirely, they reduced it to a level that they considered environmentally safe. Nonetheless, buyers sought before the trial court to terminate the contract and to require sellers to return the deposit. The trial court granted summary judgment in favor of buyers. The Appellate Division affirmed, explaining that "the parties were free to negotiate a specific level of radon as being acceptable, but did not. Indeed, the contract could have, but did not, even reference a 'safe' level of radon, which might have presented a triable issue of fact."

We reason similarly. A straightforward reading of the contract persuades us that the presence of radon gas is a basis for termination in these circumstances. Sellers did not qualify the radon clause. Consistent with established case law, we cannot make for sellers a better or more sensible contract than the one they made for themselves. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960). Even if we detected some ambiguity in the agreement, we would construe it against its preparer, in this case sellers. See In re Miller's Estate, 90 N.J. 210, 221 (1982) (observing that "[w]here an ambiguity appears in a written agreement, the writing is to be strictly construed against the draftsman").

Lastly, we are mindful of sellers' contention that almost all homes have some measurable level of radon gas. That might be so, but it cannot defeat the plain language of the unqualified radon clause before us. We were informed at oral argument that some pre-printed agreements now contain language that specifies the level of radon necessary to trigger a buyer's right to terminate. We encourage parties to include such specificity in their contracts to avoid future disputes. As for the contract here, we find it unambiguous insofar as the radon and termination provisions are concerned. Accordingly, the judgment of the Appellate Division is affirmed.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in this opinion.

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