Opinion
FSTCV146023647S
03-15-2016
Abderrahim Soufi v. Milagros Soto et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert L. Genuario, J.
I. Background
The plaintiff is the owner of certain property located in the city of Stamford known generally as 15 Vista Street, having acquired the property by warranty deed from the defendant Milagros Soto (Soto). The plaintiff claims that the defendant has violated some or all of the covenants of title that run with the warranty deed and that Soto also made certain misrepresentations concerning conditions affecting the property. The plaintiff also brought an action against the adjoining westerly property owners (whose property is generally referred to as 19 Vista Street) alleging that those defendants (collectively referred to as the defendant neighbors) had constructed a cement walkway that extended onto the plaintiff's property in violation of the plaintiff's rights. The defendant neighbors counterclaimed asserting, inter alia, that they had acquired rights to maintain a certain walkway on what had previously been 15 Vista Street by virtue of adverse possession. Shortly before the trial of the case the plaintiff and the defendant neighbors settled their disputes and the plaintiff proceeded to trial against Soto only.
II. Findings of Fact
Based upon the evidence and the pleadings the court finds the following facts. Prior to April 25, 2012 Soto was the owner of the property known generally as 15 Vista Street, Stamford, Connecticut. On or about April 25, 2012 Soto conveyed 15 Vista Street to the plaintiff by warranty deed. The warranty deed contained express language that the above premises were conveyed subject to the following: " (2) Such facts an accurate survey and/or physical inspection of said properties might reveal." Sometime prior to April 29, 2006 a stockade fence had been constructed a few feet to the east of the westerly property line as defined by the property description contained in the warranty deed. That westerly property line is the property line between the plaintiff's property and the property owned by the defendant neighbors. Sometime prior to April 29, 2006 the then owners of 19 Vista Street constructed a cement walkway in part to the east of the westerly property line up to and abutting the western side of the stockade fence. Also sometime prior to April 29, 2006 a frame shed was constructed in the north east corner of 15 Vista Street which shed extended by approximately 4.3 feet beyond the easterly property line (the opposite side from the defendant neighbors) of 15 Vista Street by 4.3 feet. Also prior to April 29, 2006 a chainlink fence was constructed approximately 4.3 feet to the east of the easterly property line of 15 Vista Street which wrapped around the eastern side of the frame shed.
Prior to the conveyance of the property from Soto to the plaintiff, the plaintiff and the defendant Soto walked around the subject property and discussed the property. The plaintiff's and the defendant's recollection as to the precise statements made by Soto with regard to the boundary lines differs and the court makes no finding in that regard. About two months after the closing of title, the defendant Soto delivered to the plaintiff a survey that she had done in April 2006 which survey is the basis for many of the court's findings regarding the location of various structures; but the plaintiff did not review the survey at that time. At the time the plaintiff acquired the property he believed that he owned the property between the two fences.
Sometime in 2013 the stockade fence was partially damaged by a storm and the plaintiff took down the balance of the fence. When the fence was damaged by the storm the plaintiff retrieved the survey that Soto had given him, and after reviewing it, concluded that the cement walkway was on his property. Because of the proximity of the supporting poles and supporting structures of the stockade fence to the cement walkway the plaintiff damaged the walkway when he removed the fence. The defendant neighbors claimed that the walkway was theirs and that the plaintiff was responsible for the damages to the walkway. Soto also believed that the property she owned was the property between the two fences. She believed that the stockade fence was on the property line and that the cement walkway belonged to her neighbor. There is a iron pin imbedded in the ground at the location of the easterly property line and there is also a stake that had been installed at the southerly terminus of the stockade fence. The plaintiff believed that the stake and therefore the fence represented the plaintiff's boundary line. She never had any discussion with neighbors on either side of her property concerning the boundary lines.
The plaintiff, through his attorney, informed Soto by letter that the plaintiff was claiming a breach of the covenant of title contained in the warranty deed on or about September 26, 2014; Soto did not respond. The plaintiff and the defendant neighbors settled their disputes executing a stipulation which in pertinent part requires the plaintiff to fix the cement walkway in a permanent way and in accordance with certain standards and provides for the plaintiff to grant the defendant neighbors an easement for that part of the walkway the encroaches over the shown property lines. The plaintiff has the option but not the obligation to reinstall the stockade fence. The reasonable cost of repair and replacement of the cement walkway is $6, 800.
At the closing of title, Soto also executed, under oath, a document entitled " Comprehensive Owners/Sellers Affidavit." In that affidavit she represented, inter alia :
2. No buildings, structures, fences or improvements on the above premises extend or appear to extend onto neighboring properties. 3. No buildings, structures, fences or improvements on neighboring property extend or appear to extend onto the above premises . . . 6. There is no evidence on the above premises of any poles, wires, pipes or other facilities (except public utilities servicing the premises) nor have others exercised or claimed any rights or easements in or to the above premises.
In her answer Soto admitted that the plaintiff relied upon her representations that the property being purchased was free from all such encumbrances to induce the plaintiff to pay good and valuable consideration to her.
III. Discussion
A. First Count--Breach of the Covenant of the Warranty of Title
In his first count against Soto the plaintiff claims that he has been damaged by Soto's breach of the warranties of title contained in the warranty deed executed by Soto.
In order to prevail on such a claim the plaintiff must prove that Soto warranted the title, that the warranty was breached, and that the plaintiff was damaged by the breach. The plaintiff claims that the sidewalk that extends beyond the westerly property line is an encumbrance that violates the warranty of title.
An encumbrance as that term is used within the meaning of the covenant against encumbrances in warranty deeds includes every right to or interest in the land, which may subsist in third persons, to the diminution of the value of the land but consistent with the passing of the fee by the conveyance. It must be a lawful claim or demand enforceable against the grantee.Aczas v. Stuart Heights, Inc., 154 Conn. 54, 60, 221 A.2d 589 (1966) (Internal citations and quotation marks omitted.). A comparison of the Aczas case with Exley v. Gallivan, 96 Conn. 676, 115 A. 482 (1921) is instructive. In Exley a purchaser of property sued his grantor for violation of the covenants contained in the warranty deed because subsequent to the conveyance the purchaser determined that a sewer pipe serving an adjoining premises ran underneath his property. However the court determined based upon the evidence presented that the adjoining property owner did not obtain an express easement nor had the plaintiff established facts which establish the encroacher's right to an easement by prescription. Accordingly the court held that notwithstanding the fact that the plaintiff proved the existence of the sewer pipe servicing an adjoining property encroached upon the plaintiff's land, the plaintiff had not proven that the adjoining property had any right to maintain the sewer pipe and therefore the plaintiff grantee had not proven a breach of the covenant against encumbrances. In Aczas the court specifically found that the plaintiff had sustained its burden of proof that a sewer pipe that encroached upon the plaintiff's property was there pursuant to a valid easement and therefore violated the covenant against encumbrances.
In the case at bar the plaintiff offered evidence from which it was clear that the cement walkway encroachment existed from April 29, 2006, but that was only six years before the conveyance and insufficient to prove a prescriptive easement, or a claim of adverse possession which would be necessary to demonstrate a valid encumbrance. However Soto's counsel in his opening statement as well as in his closing post-trial brief, conceded that the defendant neighbors had acquired a prescriptive easement (possibly because the length of time that the cement walkway and its open and notorious nature was not in dispute). " Admissions made by counsel in the course of the trial as to facts, the issues and dispute, and the like, serve a very useful purpose and ordinarily a trial court is amply justified in proceeding with the case upon the basis afforded by them, although it may in a proper case disregard them." Farley-Harvey Co. v. Madden, 105 Conn. 679, 684, 136 A. 586 (1927). " Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings . . . A judicial admission is, in truth, a substitute for evidence, in that it does away with the need for evidence." Kopacz v. Day Kimball Hosp. of Windham County, Inc., 64 Conn.App. 263, 272, 779 A.2d 862 (2001) quoting State v. Nguyen, 52 Conn.App. 85, 89-90, 726 A.2d 119 (1999) aff'd, 253 Conn. 639, 756 A.2d 833 (2000).
In his post-trial brief plaintiff's counsel included an affidavit from a non-party setting forth facts relating to the time the cement walkway had been in place. Of course, the court cannot consider such affidavit as evidence.
See footnote 1.
Accordingly the court concludes that the defendant neighbors had acquired an easement by prescription which encumbered the property conveyed by warranty deed in violation of the warranties contained therein.
Nor can Soto prevail based upon the limitation in the conveyance to the effect that it is subject to " such facts an accurate survey and/or physical inspection of said premises might reveal." While a survey or a physical inspection might have revealed the encroachment, it would not reveal the encumbrance acquired by prescription as such involve substantially more than an encroachment. It is this encumbrance that violates the express warranty contained in the deed in which Soto affirmed that she had " good right to grant and convey the same in the manner and form as herein written and the same are free from all encumbrances whatsoever, except as herein stated."
In its prayer for relief the plaintiff seeks a rescission of the transaction and a return of his purchase price. However there is nothing in the case law that entitles the plaintiff to the remedy of rescission. The reported cases provide a plaintiff who has been damaged by a breach of warranty of this nature to monetary damages. The plaintiff has cited no case in which a rescission has been ordered for a breach of the covenants contained in the warranty deed which resulted from a encumbrance based on a boundary line encroachment which does not render the property unfit for the purposes for which it was purchased. At most the remedy of rescission, which is equitable in nature, would require the plaintiff to prove that under all of the circumstances equity requires the transaction to be set aside.
While the plaintiff did testify that he would not have entered into the transaction had he known of the encumbrance, there is nothing to indicate that the plaintiff cannot use the property for the purposes for which he acquired it or that his use and enjoyment of it is substantially impacted by an encumbrance which exists over a portion of property which he did not think he was acquiring title to at the time he entered into the transaction. Finally the plaintiff has voluntarily entered into an easement agreement with the defendant's neighbor granting them express rights over the property he now seeks to transfer back to Soto. Such conduct, granting an express voluntary encumbrance of the property, is inconsistent with the remedy of rescission which he now seeks.
The traditional remedy for breach of a covenant contained in a warranty deed is damages, and the measure of damages is well established. The measure of damages is the diminution in the value of the property resulting from the encumbrance which is in violation of the covenants contained in the warranty deed. Aczas, supra . See also Butler v. Barnes, 60 Conn. 170, 21 A. 419 (1891). In order to prove those damages the plaintiff could have introduced evidence as to the value of the property unencumbered by the defendant neighbor's prescriptive easement less the value of the property as it was encumbered by the defendant neighbor's prescriptive easement. However the plaintiff introduced no such evidence. In the absence of such evidence the court cannot speculate as to what such damages might be.
The plaintiff also claims that by virtue of Soto's breach of warranty he is entitled to recover his attorneys fees. The defendant neighbors asserted a claim for adverse possession in their counterclaim and the plaintiff was required to defend his title. However, the plaintiff has failed to introduce any evidence of the attorneys fees and costs that the plaintiff has incurred either in defending the defendant neighbors' counterclaim or for that matter in the case in general. The Connecticut Supreme Court has " held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing." Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004). (Internal quotation marks and citations omitted.)
B. Misrepresentation
The Connecticut Supreme Court
has long recognize liability for negligent misrepresentation. [The Supreme Court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . Accordingly an action for negligent misrepresentation requires the [plaintiff] in the present case to prove that [Soto] made a misrepresentation of fact, that [Soto] knew or should have known that it was false, that the plaintiff reasonably relied upon the misrepresentation, and that the plaintiff suffered pecuniary harm as a result thereof. See Citino v. Redevelopment Agency, 51 Conn.App. 262, 273-75, 721 A.2d 1197 (1998).Glazer v. Dress Barn, Inc., 274 Conn. 33, 72-73, 873 A.2d 929 (2005); see also Nazami v. Patrons Mutual Insurance Company, 280 Conn. 619, 910 A.2d 209 (2006).
The evidence and pleadings in the case at bar demonstrate that Soto made a misrepresentation of fact. The statements contained in the " Comprehensive Owners/Sellers Affidavit" signed by Soto at closing that no buildings, structures, fences or improvements on neighboring property extend or appear to extend on to the above premises and that no buildings, structures, fences or improvements on the above premises extend or appear to extend on to neighboring properties are both false. The cement walkway is an improvement that extends on to the premises conveyed in the warranty deed known generally as 15 Vista Street. Moreover, the shed on the opposite side of the property is a structure or improvement that extends onto neighboring properties.
While the court has found that Soto did not know of the falsity of these representations at the time she signed the affidavit, the evidence is clear that she should have known. Soto was in possession of a survey that clearly indicated both of these encroachments. The survey was available to her for review prior to the signing of the affidavit. Having possession of the survey, she should have reviewed it prior to the conveyance of title and/or the execution of the affidavit.
Indeed the particular representations that were false are contained in a portion of the affidavit that is entitled " Affidavit In Lieu Of Survey" and is utilized because the plaintiff did not identify the survey that was in her possession in an earlier section of the affidavit. Had the plaintiff simply reviewed the survey and brought it to the closing of title, all of the true facts would have been known by both the plaintiff and Soto at the time of closing. Her failure to review the survey that was in her possession prior to executing an affidavit in lieu of survey was negligent and she should have known of the falsity of her statements.
With regard to the element of the plaintiff's reliance on these false representations the plaintiff correctly points out that Soto in her answer admitted an allegation in the count on misrepresentation that she " knew or should have known the plaintiff relied upon her representations and those of her agents that the property being purchased was free from all such encumbrances."
At the time Soto filed her answer she was self-represented.
The plaintiff is bound by this admission. Notably the plaintiff did not admit that she knew the representations was false but only that she knew that the plaintiff relied upon her representations.
While the affidavit contains language that it is made for the purpose of inducing a title insurance company to issue a policy, Soto's answer/admission is conclusive on the issue of the plaintiff's reliance.
The plaintiff also has presented evidence that the property which he purchased was not free from such encroachments and that he has incurred expenses to rectify the same. Though the plaintiff's evidence on his actual damages is wanting, the evidence is sufficient to establish the final element of the cause of action.
The court however does not find that the plaintiff has sustained its claim for fraud and/or intentional misrepresentation. The court finds credible Soto's testimony that she believed her property was the property between the two fences. This belief of the plaintiff is further supported by evidence that there was a stake in the ground at the end of the stockade fence which one might reasonably interpret to be evidence of the property line. There is no evidence that Soto installed the fence. While the plaintiff emphasizes that the survey showing the falsity of the representations was in Soto's possession at all pertinent times such possession doesn't establish the fact that she understood the significance of the various markings on the survey or that she even reviewed the survey. Indeed the plaintiff himself had possession of the survey for a significant period of time without reviewing it. Accordingly, the plaintiff is not entitled to punitive damages for intentional misrepresentation and/or fraud.
With regard to the damages for misrepresentation, the plaintiff has failed to introduce any evidence as to the value of the property as represented as opposed to the value of the property as it is. While the plaintiff in his closing brief does not argue that he is entitled to be reimbursed for the costs he has incurred in repairing the defendant neighbor's walkway, in any event, the walkway was not damaged as a result of Soto's misrepresentation but by the plaintiff's intentional acts in removing the fence and its supporting structures. While not claimed by the plaintiff in its post-trial brief, the court concludes that such expenses would not be a proper element of damages on count two. Accordingly the court will award only nominal damages on this count as well.
Conclusion
The plaintiff has introduced evidence to sustain its cause of action on both the first count, breach of the covenant contained in the warranty deed, and on the second count, negligent misrepresentation. However the plaintiff has not introduced sufficient evidence of damages to support a finding of the court for damages on either count. Accordingly the judgment may enter for the plaintiff on count one and the court awards $1 in nominal damages; judgment may enter for the plaintiff on count two and the court will also award $1 in nominal damages.
The clerk may tax costs in the normal course.
BY THE COURT
GENUARIO, J.