Griffith v. Byers Construction Company of Kansas, Inc.

Supreme Court of Kansas · 1973 · Torts

510 P.2d 198 (1973)

Updated July 23, 2026

Tortsfraudulent concealmentimplied warrantyreal estate developmentprivitysummary judgmentsoil fertilitylatent defect

Facts

Byers developed and advertised Woodlawn East Addition in Wichita as a choice residential area, but the land had formerly been part of an abandoned oil field containing salt water disposal areas. The petitions alleged Byers knew or should have known those areas would not sustain vegetation and graded and developed the addition so the salt areas became impossible for purchasers to discover. Each homeowner selected a homesite in the subdivision, the builder purchased the lot from Byers by warranty deed, and after the house was completed title passed to the homeowner. After construction, efforts to plant grass, shrubs, and trees failed because of the saline content of the soil.

Issue

Does a developer of residential lots impliedly warrant that the soil will sustain normal vegetation, and may ultimate home purchasers maintain fraud claims against the developer for nondisclosure of a known latent soil defect even though the lots were first conveyed to builders rather than directly to the purchasers?

Rule

A real estate developer, merely by subdividing and offering lots for sale as choice residential homesites, does not impliedly warrant soil fertility. Delivery and acceptance of an ordinary warranty deed negate warranties not expressed in the deed or implied by K.S.A. 58-2203. However, where a vendor knows of a defect not within the fair and reasonable reach of the vendee and not discoverable by reasonable diligence, silence and failure to disclose may constitute actionable fraudulent concealment; liability for such concealment extends to the persons or class of persons the defendant intends or has reason to expect will act in reliance, so lack of direct privity is no defense.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Mesa View Development platted a new subdivision outside Tulsa and promoted the lots as desirable places for custom homes. Nora Kim bought a completed home there from a builder, then discovered the lot's subsurface chemistry made ordinary grass and shrubs impossible to maintain, though the house itself was structurally sound.

If Nora sues Mesa View for breach of an implied warranty that the lot would support normal residential vegetation, what is the strongest answer?

Explanation. The majority rejected an implied warranty that residential lots will sustain normal vegetation. It distinguished vendor-builder house cases and product cases, emphasizing that the defect concerned the land's fertility and caused economic loss rather than structural or personal injury. Delivery and acceptance of an ordinary warranty deed negate warranties not expressed in the deed or implied by statute, and the statutory implied covenants concern title and possession, not soil quality. (Derived from Griffith v. Byers Construction Company of Kansas, Inc. (1973).)