On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-0583-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Wefing, R. B. Coleman and Lyons.
Plaintiff Vincent Morris (Morris) appeals pro se from a March 5, 2007 order granting summary judgment in favor of defendants Mark Hagler and Julie Hagler (the Haglers), dismissing plaintiff's complaint and declaring the parties' real estate contract null and void. After reviewing the record in light of the arguments advanced on appeal, we affirm.
The relevant facts of this case are as follows. On September 19, 2006, the Haglers signed an offer in the form of a standardized "Coldwell Banker Purchase Agreement" (the Contract) for the purchase of real estate in Tewksbury, New Jersey, from Morris. On September 21, 2006, Morris signed the Contract and delivered it to the Haglers the next day. The Contract contained the following three contingency clauses:
7F. PHYSICAL INSPECTION: This Contract is contingent upon Buyer obtaining at Buyer's expense and furnishing to Seller a written inspection report of the presence of UFFI, asbestos, mold or other contaminating substances and the functioning air conditioning, plumbing, heating, electrical, roof, well (if applicable), basement and structural aspects of all buildings on the Property made by a reputable inspection firm within ten (10) calendar days of the date of delivery of the signed Contract to Buyer and Seller. In the event the inspection report discloses any structural damage or other deficiencies in any of foregoing items, Seller must notify Buyer, in writing, within five (5) calendar days after receiving the inspection report whether Seller intends to remedy such damage or deficiencies. If Seller is unwilling to remedy the deficiencies and correct all of the damage or deficiencies, then either party may void this Contract unless Buyer agrees, in writing, within five (5) calendar days of receipt of Seller's written notice, to accept the Property in an "AS-IS" state. If Seller is willing to remedy all deficiencies and correct all damage, prior to Closing, then this Contract shall be binding. In the event this Contract is voided as provided herein, then Buyer shall be entitled to a refund of Buyer's deposit plus all interest accrued which may be due to Buyer. 7G. SEPTIC INSPECTION: It is agreed that Buyer may have tests made of the existing soil on the Property at Buyer's expense within ten (10) calendar days of the date of delivery of the signed Contract to Buyer and Seller, by a sanitary engineer, reputable testing service or a governmental official or agency having jurisdiction to determine whether the existing soil meets all of the governmental standards for individual subsurface sewage disposal systems pursuant to N.J.A.C. 7:9A-1.1 et seq. to service the dwelling and any other buildings on the Property. If the test results are satisfactory, i.e. there are no violations of applicable governmental standards, this Contract shall be binding. If the test results are not satisfactory, Buyer shall be entitled to a return of Buyer's deposit plus all accrued interest which may be due to Buyer. 7I. RADON INSPECTION: This Contract is contingent upon the Buyer obtaining at Buyer's expense and furnishing to the Seller a certification of the level of radon gas in the Property made by a reputable inspection firm within ten (10) calendar days of the date of delivery of the signed Contract to Buyer and Seller. Pursuant to N.J.S.A. 26:2D-73, Buyer has a right to receive the results of previous radon tests conducted at the Property. In the event the presence of radon gas is in excess of four (4) picocuries per liter, or any applicable standard promulgated by the DEP and the EPA, Seller must notify Buyer, in writing, within ten (10) calendar days after receiving the report whether Seller will make the necessary installations and repairs to reduce the level of radon gas prior to Closing below the applicable requirement or standard. If Seller agrees to make the necessary installations and repairs, this Contract shall be binding. If the level is not so reduced and a certification furnished to that effect by Seller to Buyer, Buyer may void this Contract by notifying Seller in writing and Buyer shall be entitled to a return of Buyer's deposit plus all accrued interest which may be due to Buyer or waive the unremediated condition and take title without an abatement in the Purchase Price.
On September 26, 2006, the Haglers served a disapproval letter on Morris's attorney and the real estate agents. The letter contained proposed amendments that would make the Contract acceptable to the Haglers. On October 2, 2006, Morris agreed to the proposed amendments, thereby completing the attorney review period and establishing a firm contract.
Thereafter, on October 5, 2006, Morris's attorney received a copy of the home inspection report, provided with a cover letter from the Haglers, requesting the repair of specific items as well as a credit for the well motor and pump, which defendants alleged was wrongfully represented as 2006 replacements. The Haglers also notified Morris that the septic system needed to be repaired. The next day, the Haglers faxed an amendment to the home inspection report, indicating that the well pump and motor were dated 1997 and that the front entrance hall door needed repair.
On October 10, 2006, the Haglers' attorney forwarded Morris's attorney a copy of a septic report, outlining necessary repairs that amounted to approximately $4,800. Those repairs included: (1) installing a riser over the existing manhole access port, which was too low and not in accord with code at the time of its installation; (2) properly installing a waste line; and (3) installing a new distribution box. The report stated that approval from the Department of Health was necessary in order to make the repairs. In the letter sent with the report, the Haglers requested a credit of $1,800 because the company that installed the well tank had advised them the motor pump had a useful life of ten to fifteen years and would cost $1,800 to install. Additionally, the letter stated that mold testing would be performed.
On October 11, 2006, Morris's attorney received another letter from the Haglers' attorney advising him that the radon test revealed levels of radon gas in the house above six picocuries per liter. Such levels exceed the New Jersey Department of Environmental Protection (DEP) action level of four picocuries per liter. In the letter, the Haglers sought confirmation that Morris would "install a remediation system using a qualified radon remediation firm."
On October 16, 2006, Morris's attorney responded in writing to the various home repair requests presented by the Haglers. The attorney indicated the following: (1) Morris was offering a credit of $250 for repointing the chimney brick; (2) Morris replaced a missing screw on the furnace and had it inspected by a heating and air professional; (3) items 3-5 from the home inspection were corrected; (4) Morris replaced the entrance hall door; (5) Morris received an estimate of $1,400 to replace the tank and offered that amount as a credit; (5) the septic system had been inspected by and approved by the municipality, was in proper working order, and Morris would not make repairs or provide a credit; and (6) Morris had recently tested the property for radon twice and both tests were below the DEP's action levels, therefore, he suggested that the Haglers retest the property and that the parties be bound by the new test.
That same day, the Haglers, through their attorney, replied by declaring the contract terminated pursuant to the home inspection contingency clause. The Haglers' attorney wrote:
I am in receipt of your letter dated October 16, 2006. In that letter the Seller has refused to correct all deficiencies as requested by the Buyer. The Buyer declares the Contract is hereby terminated ...