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THIRD HOLDING
The last problem involved concerns the liability between
the buyer and seller of the hotel due to the outstanding lease. The
buyer claims the seller's representation that the lease was a month
to month lease survived the ,closing deeds although at the last moment
the buyer moved the Court to be permitted to amend the buyer's pleadings
to conform with the evidence thus establishing a breach of warranty
claim. The Court reserved its ruling. The seller contends the contract
merged into the deed and the representation is no longer in effect.
The seller also. contends that the buyer can-not claim damages because
the buyer was negligent in not checking out the title and inquiring
of the tenant as to the terms of the lease prior to closing.
The general rule is that provisions of preliminary nego-
tiations leading up to the sale of real estate merge in the deed.
This rule is subject to•the recognized exception that where there
are covenants outside, collateral to or independent of the provisions
of the deed, there is no merger: (See Soper v. Stin, 184 So. 2d
892-894.) The~rule that acceptance of a deed tendered in performance
of a contract to convey land merges or extinguishes the covenants
and stipulations contained in the contract does not apply to those
provisions of the antecedant contract which the parties do not intend
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j to be incorporated in the deed, or which are not necessarily performed
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E or satisfied by the execution and delivery of the stipulated conveyance.
(See Milu, Inc. v. Duke, 204 So.2d 31-33.)
First, let us look at the deed attached hereto and by
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reference made a part hereof and marked Exhibit A. The "typed-in"
portion mentions a mortgage but nothing about a Iease:: Why not??
The obvious answer is that it was not considered as a part of the
closing but was merely a matter of rental pro ration, if at all.
Perhaps the last month's rent was to be pro rated or maybe just ignored
with the new purchaser expected to give the tenant notice. In any
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event the deed ignored the lease thus leaving it remaining for what-
ever effect it might have. Not being involved in the deed the lease
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