This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Torkelson Development, Inc.,
Brian Hagen, et al.,
defendants and third
Third Party Defendant.
Ramsey County District Court
File No. C2-04-2762
Lawrence P. Marofsky, Lawrence P. Marofsky Law Office, 7022 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for appellant)
John M. Gearin, John M. Gearin, P.A., 600 Inwood Avenue North, Suite 200, Oakdale, MN 55128 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.
In June 2003, appellant Mike
Torkelson Development, Inc. (Torkelson) purchased vacant land in
D E C I S I O N
appeal from summary judgment, we consider whether there are any genuine issues
of material fact and whether the district court erred in its application of the
v. Rotation Eng’g & Mfg. Co., 705 N.W.2d 416, 420 (
Because the parties do not dispute the material facts, we examine whether the district court erred as a matter of law by determining that Torkleson waived disclosure of the utility connection fees. Sellers of residential real estate are required by statute to make certain disclosures to prospective buyers. Specifically, Minn. Stat. § 513.55, subd. 1 (2002), provides that:
(a) Before signing an agreement to sell or transfer residential real property, the seller shall make a written disclosure to the prospective buyer. The disclosure must include all material facts pertaining to adverse physical conditions in the property of which the seller is aware that could adversely and significantly affect:
(b) The disclosure must be made in good faith and based upon the best of the seller’s knowledge at the time of the disclosure.
Contracting parties may waive
this disclosure requirement under Minn. Stat. § 513.60 (2002), if the
buyer and seller agree in writing. But a
seller who fails to make a disclosure as required by sections 513.52-.60 is
liable in damages to the prospective buyer.
The purchase agreement between Torkelson and the Hagens was subject to a Vacant Land Addendum, which contained the following paragraphs:
21. OTHER: Buyer assumes any and all expenses to connect to sewer and water from the street to lot.
22. Seller’s expenses for these contingencies (if any) shall not exceed $500.
. . . .
32. OTHER: This offer subject to buyer determining to his satisfaction the following items: a) cost of stubbing[] water and sewer that is an acceptable amount to the buyer, b) the type of structure the buyer would find acceptable to place on the property.
The district court determined that the terms of the purchase agreement contained in the vacant land addendum constituted a waiver of the statutory disclosure requirement as to the amount of the water and sewer connection fees. Torkelson argues that he did not waive his right to disclosure of the amount of the fees because the addendum did not use the word “waiver,” and there is no evidence that he intended to waive disclosure.
Waiver is a voluntary
relinquishment of a known right. Ill.
Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 798 (
Torkelson is an experienced real estate developer and former real estate agent. Notwithstanding Torkelson’s assertion that the record contains no evidence of his intent to waive disclosure, Torkelson’s conduct prior to the closing demonstrates that he assumed a duty to investigate the expenses associated with connecting utilities to the property. Specifically, Torkelson contacted the city’s building inspector to investigate. Torkelson stated in his deposition that:
[The building inspector] was asked to come up with how much the building permit will be and any fees that might attach to the building permit. He knew the exact property. He knew the exact property I was speaking of. And he said on that particular property the normal SAC and WAC, which they call the sewer availability and the water availability charges that come with the permit, not the fee relating to having it in the street, but the fee to give you the right to hook to that from the house to the street had probably been paid for by the house that had been torn down. And that there probably wouldn’t be any fee at all and the permit might only be $3000 versus what might normally be $6500.
And Torkelson confirmed with the city engineering department that there were sewer and water connections in the street, because without that information Torkelson “wouldn’t dare close on the lot.” But Torkelson apparently relied on the building inspector’s statement that the utility connection fees likely had been paid, as evidenced by the following deposition testimony:
Q: Now, you’ve previously testified that [the inspector] thought they probably had been paid.
. . . .
Q: So you didn’t follow up with anybody else - -
A: No further.
The conduct Torkelson himself describes indicates that Torkelson believed he had a duty to investigate the expenses associated with connecting to sewer and water. Taken together with the terms of the vacant land addendum, Torkelson’s conduct demonstrates his intent to waive disclosure of the amount of the utility connection fees as a matter of law.
Torkelson also maintains that Minn. Stat. § 513.60 requires
express use of the word “waiver” to effectuate a valid waiver of the seller’s
duty to disclose. But the plain language
of the section belies Torkelson’s assertion.
Section 513.60 provides that “[t]he written disclosure required under
sections 513.52 to 513.60 may be waived if the seller and the prospective buyer
agree in writing.” Because paragraphs
21, 22, and 32 of the vacant land addendum constitute an agreement in writing
under section 513.60, and because Torkelson’s conduct constitutes evidence of
intent to waive disclosure of information regarding the amount of any utility
connection fees, the district court did not err when it granted the
Torkelson also argues that