(August 9, 2017 at 4:07 pm)Mister Agenda Wrote:bolding mineNymphadora Wrote:See? No laws on the books in NY regarding disclosure of supernatural phenomenon.
A law does not necessarily have to be 'on the books' for something to be legal or illegal. Most of us bow to case law in regard to separation issues...we don't agree that a law against having preachers in to lead children in worship and praise at a public school has to be 'on the books' to be illegal, in light of judicial findings and legal precedents. In SC, it's against the state constitution for an atheist to hold public office, but it's actually legal due to a court finding invoking the 14th Amendment to the US Constitution. The logic of the decision may seem obvious to most of us, but it didn't necessarily have to go that way. Courts aren't always predictable, but the precedents they set are one of the major foundations of our law.
That doesn't mean I disagree with you about the limited nature of what the Ghost Buster case actually established, but having to refund the down payment IS a legal finding in a civil case.
And I agree with that... there was a legal finding in the case. The Plaintiff got his money back and was allowed to back out of the contract.
Quote:That would be the consequence of any number of clearly illegal but not prima facie criminal omissions on the part of a seller in many cases: having to give the money back.
And this is the part where I disagree because the Judge's own words do not imitate any "illegal findings" In fact, it's quite the opposite.
By the Honorable Judge Rubin:
"While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his down payment. New York law fails to recognize any remedy for damages incurred as a result of the seller's mere silence, applying instead the strict rule of caveat emptor. Therefore, the theoretical basis for granting relief, even under the extraordinary facts of this case, is elusive if not ephemeral."
Quote:If you are knowingly selling property in NY with a reputation for being haunted, you're well advised to disclose before money changes hands, particularly if the buyer is in a poor position to find out the property's reputation. If the case had gone the other way, you could withhold phantasmal rumors to your heart's content, safe in the knowledge that the law is on your side.
Sure...if the property in question has a reputation for being haunted, in the state of NY, it would be wise for the seller to disclose such things, but if they choose not to - it's not necessarily illegal. Nevertheless, I concur; the precedent has been set by that case. Care and due diligence could also be said that the buyer, interested in any property, should look closely at what they are purchasing - especially with such a high cost attached to it - to make sure they know exactly what they are getting. Buyer beware, which leads us to another point that Judge Rubin makes:
"From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: "Who you gonna' call?" as a title song to the movie "Ghostbusters" asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale. It portends that the prudent attorney will establish an escrow account lest the subject of the transaction come back to haunt him and his client — or pray that his malpractice insurance coverage extends to supernatural disasters. In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest."
Bolding mine.
I love how the judge inserts a bit of humor through his entire brief. But there it is. Directly from that case itself.
Opinion of the court, background of the case and briefings by the Judges
Disclaimer: I am only responsible for what I say, not what you choose to understand.