SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the opinion below.)
Argued February 3, 2003 -- Decided February 26, 2003
PER CURIAM
In August 2000, Estelle and Bernard Aronson entered into a contract to sell
their home in Cherry Hill to Ross and Audrey Kotkin. The Kotkins deposited
$10,000 in escrow upon signing a form real-estate-sales contract prepared by the Aronson’s
real estate agent. The contract provided the buyers with the right to have
a home inspection covering a variety of areas, including “heating, air conditioning, plumbing,
and electrical systems, foundation and structure, roof and flashing, possible environmental conditions affecting
the property such as the presence of radon gas, formaldehyde gas, air-borne asbestos
fibers, toxic chemicals, or other pollutants in the soil, air or water.”
The contract also sets forth the parties’ rights and obligations in the event
“such inspection(s) reveals any defect in the area specified above[.]” When such a
defect is found, the contract authorizes the buyers to terminate the agreement and
obligates the sellers to refund the deposit monies, unless the sellers agreed, in
writing, within five days, “to repair and/or replace same, as may be required,
at the Seller’s own cost and expense.”
The Kotkins informed the Aronsons that the home inspection of the residence revealed
the presence of radon. In response to that report, the Aronsons undertook remedial
work that did not eliminate the radon but substantially lowered it to a
level the Sellers believed to be safe. When the Aronsons refused the request
to return the $10,000 deposit, the Kotkins instituted suit, seeking termination of the
contract and a return of their deposit.
The Kotkins filed a motion for summary judgment, which was granted. The motion
judge concluded that because the contract did not refer to any specific level
of radon gas but simply to the “presence of radon gas,” the buyers
were within their rights to terminate the contract. Because there were no triable
issues of fact, judgment was entered against the Aronsons in the amount of
$10,000.
On appeal, the Appellate Division affirmed the decision of the motion judge, explaining
that “the parties were free to negotiate a specific level of radon as
being acceptable, but did not. Indeed, the contract could have, but did not,
even reference a ‘safe’ level of radon, which might have presented a triable
issue of fact.”
The Supreme Court granted certification.
HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed
in the per curiam opinion. Based on the clear language of the contract,
the presence of radon gas revealed during a home inspection is a sufficient
basis to terminate the real-estate-sales contract between the parties.
1. Sellers did not qualify the radon clause. Although mindful that all homes
have some measurable level of radon gas, that cannot defeat the plain language
of the unqualified radon clause. In order to avoid these types of disputes
in the future, parties are encouraged to include language in their contracts specifying
the level of radon necessary to trigger a buyer’s right to terminate.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join
in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
4 September Term 2002
ROSS KOTKIN and AUDREY KOTKIN,
Plaintiffs-Respondents,
v.
BERNARD ARONSON and ESTELLE ARONSON,
Defendants-Appellants.
Argued February 3, 2003 – Decided February 26, 2003
On certification to the Superior Court, Appellate Division.
Kevin D. Sheehan argued the cause for appellants (Parker, McCay & Criscuolo, attorneys).
Richard I. Rosenberg argued the cause for respondents (Rosenberg & Goldstein, attorneys).
PER CURIAM
We affirm the judgment below, substantially for the reasons expressed in the opinion
of the Appellate Division, reported at ___ N.J. Super. ___(2002). We add only
these brief comments to amplify that opinion.
Plaintiffs and defendants are, respectively, intended buyers and sellers of a parcel of
real estate, which includes a residential dwelling. The parties signed a form contract
prepared by sellers’ real estate agent. The contract accords buyers the right to
inspect the dwelling in respect of “heating, air conditioning, plumbing and electrical systems,
foundation and structure, roof and flashing, possible environmental conditions affecting the property such
as presence of radon gas, formaldehyde gas, air-borne asbestos fibers, toxic chemicals or
other pollutants in the soil, air or water.” (Emphasis added).
The same provision of the contract also sets forth the parties’ rights and
obligations in the event that “such inspection(s) reveals any defect in the area
specified above[.]” When such defect is discovered, the contract authorizes buyers to terminate
the agreement and obligates sellers to refund the deposit monies, unless sellers further
agree “to repair and/or replace same, as may be required, at the Seller’s
own cost and expense.”
Buyers informed sellers that an inspection of the dwelling had disclosed the presence
of radon. Although sellers failed to eliminate the radon entirely, they reduced it
to a level that they considered environmentally safe. Nonetheless, buyers sought before the
trial court to terminate the contract and to require sellers to return the
deposit. The trial court granted summary judgment in favor of buyers. The Appellate
Division affirmed, explaining that “the parties were free to negotiate a specific level
of radon as being acceptable, but did not. Indeed, the contract could have,
but did not, even reference a ‘safe’ level of radon, which might have
presented a triable issue of fact.”
We reason similarly. A straightforward reading of the contract persuades us that the
presence of radon gas is a basis for termination in these circumstances. Sellers
did not qualify the radon clause. Consistent with established case law, we cannot
make for sellers a better or more sensible contract than the one they
made for themselves. Kampf v. Franklin Life Ins. Co.,
33 N.J. 36, 43
(1960). Even if we detected some ambiguity in the agreement, we would construe
it against its preparer, in this case sellers. See In re Miller’s Estate,
90 N.J 210, 221 (1982) (observing that “[w]here an ambiguity appears in a
written agreement, the writing is to be strictly construed against the draftsman”).
Lastly, we are mindful of sellers’ contention that almost all homes have some
measurable level of radon gas. That might be so, but it cannot defeat
the plain language of the unqualified radon clause before us. We were informed
at oral argument that some pre-printed agreements now contain language that specifies the
level of radon necessary to trigger a buyer’s right to terminate. We encourage
parties to include such specificity in their contracts to avoid future disputes. As
for the contract here, we find it unambiguous insofar as the radon and
termination provisions are concerned. Accordingly, the judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join
in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-4 SEPTEMBER TERM 2002
ON CERTIFICATION TO Appellate Division, Superior Court
ROSS KOTKIN and AUDREY
KOTKIN,
Plaintiffs-Respondents,
v.
BERNARD ARONSON and ESTELLE
ARONSON,
Defendants-Appellants.
DECIDED February 26, 2003
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST