Lucero v. Van Wie

SABERS, Justice

(dissenting).

[¶ 21.] I have no great sympathy for this buyer under these circumstances, but I question whether the public policy of the State of South Dakota of requiring disclosure should be so easily waived and discarded. After all, it is too easy to insert an “as is” clause in a purchase agreement and in a contract for deed. In fact, it is common boilerplate language in purchase agreements, contracts, and printed forms.

[¶ 22.] The South Dakota Legislature made it clear in SDCL 43-4-38 that, unless excepted, all sellers shall furnish a completed copy of the property condition disclosure statement before the buyer makes a written offer. This seller is not excepted under SDCL 43-4-43 or any other provision of the chapter. In addition, the legislature provided, in SDCL 43^4-41, that:

Good faith disclosure required. The seller shall perform each act and make each disclosure in good faith.

As a final precaution, the South Dakota Legislature took great pains to provide, in SDCL 43-4-44, a six and one-half page “SELLER’S PROPERTY CONDITION DISCLOSURE STATEMENT” form and made its use mandatory.

[¶ 23.] In Engelhart v. Kramer, 1997 SD 124, 570 N.W.2d 550, we recently held that a seller, who completed a seller’s property condition disclosure statement, inadequate*899ly disclosed the problems, and, in fact, had not completed the disclosure statement in good faith. Now, in stark contrast, the majority holds that it is not even necessary to provide a disclosure statement to the buyer; in other words, you are rewarded if you do not try to comply with the law, but damned if you do try. One should never be rewarded for failing to comply with the law.

[¶ 24.] Whatever happened to the statement of law so frequently used by this court that “statutes mean what they say and that legislators have said what they mean.” Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 9, 562 N.W.2d 888, 891 (quoting In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984)). Before we permit a waiver of the property condition disclosure statement as required by law, we should insist, at a minimum, upon a separate, signed waiver supported by independent consideration.