McCoy v. Cox

In McCoy v. Cox, 2007 WL 1677536 (Del. Super. Jun. 11, 2007), the court held that a leak in a shower pan that was known to the sellers to have occurred in the past was not a material defect subject to mandatory disclosure because the seller corrected the problem at least a year prior to settlement and had not experienced any leaks since the repair. The court also found that there was not enough evidence in the record to establish that the sellers knew of a subsequent leak after they performed the repair one year before settlement. Id. The Court held that the seller breached the residential real estate sales contract by failing to disclose in the seller's disclosure form that a ceiling fan was broken, because the seller admitted at trial that he noticed the fan "flickered" about six months before settlement. Importantly, the Court noted that even if the seller orally disclosed that the fan was broken before settlement, the seller still breached the contract because the Act requires written disclosures. Additionally, the court held that a leak in a shower pan known to the sellers before settlement was not a material defect subject to mandatory disclosure because the seller corrected the problem one year before settlement and had not experienced any leaks since the repair. Finally, the court held that flooding in the garage admittedly known to the sellers five years before settlement was not a material defect subject to mandatory disclosure, because the seller corrected the problem at the time of the flooding. The court found that the problem was corrected because the seller testified that the flooding was caused by mud clogging the French drain, that at the time of the flooding he removed the mud, and there had not been any flooding in the garage since this repair.