Soniat v. Johnson-Rast & Hays
In Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala. 1993) the plaintiffs alleged fraudulent suppression of termite damage to the house -- suppression not only by the seller, but also by the listing agent. In discussing the liability of the listing agent, the Court held:
"A defendant who has no duty to disclose arising from his relationship with the plaintiff or the special circumstances of the transaction may nevertheless be liable for fraudulent concealment if he knowingly takes action to conceal a material fact with the intent to deceive or mislead the plaintiff. See 6-5-103, Ala. Code 1975 ...." Soniat 626 So. 2d at 1259.
In other words, the Court held that the listing agent had no duty arising from the relationship between the agent and the buyers to disclose deficiencies in the house being sold.
However, The Court also held that a separate duty to disclose any termite damage arose from the particular facts that surrounded that transaction, facts clearly indicating that the buyers had specifically requested that the termite report be presented to them before the sale.
Because of this request, the seller and his agent had a duty to provide the complete termite report, and, because a material portion of the termite report presented to the buyers was missing, the jury could infer that the agent had breached the duty he owed to the buyers.
Thus, that case presented a jury question. The holding we have just quoted from Soniat is too loose. That holding is modified to read as follows, so as to accurately correspond to the facts in Soniat :
"A defendant who has no duty to disclose arising from his relationship with the plaintiff may nevertheless be liable for fraudulent concealment if he knowingly takes action to conceal a material fact that has been requested of him by the plaintiff and does so with the intent to deceive or mislead the plaintiff."
In Soniat, the buyers (the Soniats) required the seller to provide a termite bond, as a condition to closing. Soniat, 626 So. 2d at 1259.