MANUEL J. DIAZ AND HAYDEE CAMACHO DE DIAZ, HIS WIFE, APPELLANTS,
v.
THE KEYES COMPANY, A FLORIDA CORPORATION, APPELLEE
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Purchasers of Miami Beach hotel property sued a real estate broker for damages, alleging the broker presented property for sale with a misleading description brochure that omitted defects. The trial court dismissed the complaint for failure to state a cause of action, and the appellate court affirmed, holding that brokers have no duty to inspect property on behalf of purchasers and that the complaint failed to allege affirmative misrepresentation or deceit.
The trial court properly dismissed the complaint because: (1) the broker owed no duty to inspect the property on behalf of the purchasers; (2) the complaint failed to adequately allege a cause of action in tort for deceit, as no affirmative misrepresentation was alleged; and (3) the appellants failed to use due diligence for their own protection by purchasing the property sight unseen without inspection.
“there being no duty on the part of the broker to inspect the property in behalf of the purchasers”
Establishes that brokers have no affirmative duty to inspect property for the benefit of buyers
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Join FLexlaw to unlock all legal intelligenceAppellants, Cuban citizens residing in Cuba, purchased hotel premises in Miami Beach through defendant broker. The broker presented the property for s…
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By a second amended complaint, the appellants, purchasers of hotel premises at Miami Beach, sued the defendant, a real estate brokerage company, for damages. The basis on which recovery was sought was a charge that the defendant brokers had presented the property for sale to the plaintiffs while Cuban citizens, in Cuba, with a description brochure which did not show the defective condition thereof, as a result of which when they bought the property, sight unseen and without inspecting or having caused it to be inspected, they suffered substantial loss for needed repairs and restoration. No affirmative misrepresentation by the broker was alleged. The trial judge dismissed the second amended complaint with prejudice, reciting as his grounds the following:
“This cause came on to be heard upon the defendant’s Motion to Dismiss the Second Amended Complaint. The Court heard argument of counsel for the respective parties and is of the opinion that plaintiffs’ Second Amended Complaint fails to state a cause of action in that (a) the Second Amended Complaint does not set forth therein either a duty flowing from the defendant (broker) to the plaintiffs (purchasers), nor a breach thereof, there being no duty on the part of the broker to inspect the property in behalf of the purchasers (b) the Sec*555ond Amended Complaint does not sufficiently state a cause of action in tort for deceit, see Potakar v. Hurtak (S.Ct.Fla., Sept. 23, 1955) 82 So.2d 502; Kaminsky v. Wye (2d Dist., Fla. July 26, 1961) 132 So.2d 44; and’(c) the Second Amended Complaint shows that the plaintiffs failed to use due diligence for their own protection, see Williams v. McFadden (S.Ct.Fla., Feb. 28, 1887) [23 Fla. 143], 1 So. 618; Glass et al v. Craig, et al (S.Ct.Fla., March 22, 1922) [83 Fla. 408], 91 So. 332; Mandrachia v. Ravenswood Marine, Inc., (2d Dist., Fla. [App.], March 30, 1960) 118 So.2d 817; nor do the plaintiffs allege any deception, artifice or misconduct on the part of the defendant.”
We have considered the complaint in the light of the briefs and argument, and are in agreement with the views and reasons expressed by the able trial judge as to its insufficiency.
Affirmed.
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Hamill v. Miodonski, 182 So. 2d 464 (Fla. 3d DCA 1966)…PER CURIAM. Affirmed on the authority of Kaminsky v. Wye, Fla.App.1961, 132 So. 2d 44; Diaz v. Keyes Company, Fla.App.1962, 143 So. 2d 554.…
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Smyth v. Jane C. Cousins, Inc., 358 So. 2d 1158 (Fla. 3d DCA 1978)…igent misrepresentation there must be some affirmative action on the part of the defendant broker in advertising the sale of the property. See Nantell v. Lim-Wick Construction Company, 228 So. 2d 634 (Fla.4th DCA 1969) and Cf. Diaz v. Keyes Company, 143 So. 2d 554 (Fla.3d DCA 1962). There is no showing in the record that Cousins participated in any part of the sale, received a commission or made any representations to the Smyths in connection therewith. Further, the brochure was prepared for the 'use of the r…
Authorities Cited
- Glass v. Craig, 83 Fla. 408 (Fla. 1922)
- Williams v. McFadden, 23 Fla. 143 (Fla. 1887)
- Potakar v. Hurtak, 82 So. 2d 502 (Fla. 1955)
- Mandrachia v. Ravenswood Marine, Inc., 118 So. 2d 817 (Fla. 2d DCA 1960)
- Art Present v. Klubeck, 132 So. 2d 44 (Fla. 3d DCA 1961)
- George v. Kaminsky, 132 So. 2d 44 (Fla. 2d DCA 1961)