On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, DC-901-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
Plaintiff appeals from a judgment entered on September 11, 2007, in the Special Civil Part, dismissing her complaint against defendants for water damage to her basement. We affirm. On January 23, 2005, the parties entered into a contract in which plaintiff agreed to purchase a Hamilton Township property from defendants. The following provisions of the contract are pertinent to plaintiff's lawsuit:
17. MAINTENANCE AND CONDITION OF PROPERTY: The Seller agrees to maintain the grounds, buildings and improvements, in good condition, subject to ordinary wear and tear. The premises shall be in "broom clean" condition and free of debris on the date of Closing. Seller represents that all electrical, plumbing, heating and air conditioning systems (if applicable), together with all fixtures included within the terms of the Agreement now work and shall be in proper working order at the time of Closing. Seller further states, that to the best of Seller's knowledge, there are currently no leaks or seepage in the roof, walls or basement. UNLESS OTHERWISE INDICATED IN THE ADDITIONAL CONTRACTUAL PROVISIONS SECTION (Section 30) OF THIS AGREEMENT[,] ALL REPRESENTATIONS AND/OR STATEMENTS MADE BY THE SELLER, IN THIS SECTION, SHALL NOT SURVIVE CLOSING OF TITLE. This means that the Seller DOES NOT GUARANTEE the condition of the premises AFTER the deed and affidavit of title have been delivered to the Buyer at the "Closing."
20. INSPECTION CONTINGENCY CLAUSE:
B. Buyer's Rights to Inspections
The Buyer acknowledges that the Property is being sold in an "AS IS" condition and that this Agreement is entered into based upon the knowledge of the Buyer as to the value of the land and whatever buildings are upon the Property, and not on any representation made by the Seller, the named Broker(s) or their agents as to character or quality. . . .
C. Responsibilities to Cure
If any physical defects, or environmental conditions are reported by the inspectors to the Seller within the Inspection Time Period, the Seller shall then have seven (7) calendar days after the receipt of such reports to notify the Buyer in writing that the Seller shall correct or cure any of the defects set forth in such reports. If Seller shall fail to notify Buyer of Seller's agreement to so cure and correct, such failure to so notify shall be deemed to be a refusal by Seller to cure or correct such defects. If Seller shall fail to agree to cure or correct such defects within said seven (7) day period, . . . the Buyer shall then have the right to void this Contract by notifying the Seller in writing within seven (7) calendar days thereafter. If Buyer shall fail to void this Contract within the seven (7) day period, the Buyer shall have waived his right to cancel this Contract and this Contract shall remain in full force, and Seller shall be under no obligation to correct or cure any of the defects set forth in the inspections. If Seller shall agree to correct or cure such defects, all such repair work shall be completed by Seller prior to the closing of title.
23. ENTIRE AGREEMENT; PARTIES LIABLE:
This Agreement contains the entire agreement of the parties. No representations have been made by any of the parties, the Broker(s) or his/her/their agents except as set forth in this Agreement. . . .
Evidence at the bench trial disclosed that plaintiff ordered a home inspection for the premises, which came back "satisfactory," except for, as plaintiff's counsel wrote to defense counsel on February 22, 2005, "evidence of water problems as to the basement." Plaintiff's counsel asked defense counsel to "follow up with sellers as to the nature of the 'water problem' in the basement, and advise as to same." The day after receiving the February 22 letter, defense counsel wrote back to plaintiff's counsel, indicating that he had discussed the letter with his clients, who advised him "that the water stains in the basement had occurred because of unclean gutters which had washed out dirt around the foundation of the house. They have since had a landscaper add dirt and regrade the area and they have extended the downspouts away from the house." Defense counsel asked plaintiff's counsel to "please contact [him] if [he] desire[d] to discuss [the] matter further." After receiving defense counsel's letter, plaintiff did not order an additional inspection of the property or request defendants to take any additional action. Settlement was held on March 24, 2005, when title was transferred to plaintiff. The following month, during heavy rains, the basement walls became ...