| Opinion: | Rickard v. Coulimore, 2022 OK 9 |
| Subject matter: | Real Estate |
| Date Decided: | January 25, 2022 |
| Trial Court: | District Court of Pottawatomie County, Judge John G. Canavan |
| Route to this Court: | Review of certified interlocutory order following grant of certiorari to review. |
| Facts: | Jonathan P. Coulimore and Elinor Coulimore established the Coulimore Family Living Trust (the “Trust”), a revocable trust. The Coulimores were the settlors, trustees and beneficiaries of the Trust. The Trust owned the residential real property sold to the Plaintiff, Rickard, but the Coulimores never occupied the property. Rather, the Coulimore’s daughter, son-in-law and grandchildren resided on the property. Rickard sued the Coulimores, individually and as trustees of the Trust, for failure to disclose defects in the property (issues from previous flooding, water, and drainage damage). The trial court granted partial summary judgment to Rickard on the basis that the real property transaction at issue was exempt from the Residential Property Condition Disclosure Act (RPCDA) pursuant to Title 60 O.S.2011 § 838(A)(3). Rickard appealed. |
| Standard of Review: | Summary judgment is reviewed de novo. Issues of statutory construction are also reviewed de novo |
| Analysis: | The Residential Property Condition Disclosure Act (RPCDA) (Title 60 O.S.2011 § 831 et seq.) provides the sole and exclusive remedy for civil actions for a seller’s failure to disclose a defect which was actually known to the seller prior to acceptance of an offer to purchase. The RPCDA applies to most residential real property transactions, but § 838 lists several exemptions. Rickard argues that the RPCDA does not apply to the transaction at issue in this case and the Coulimores argue that the RPCDA does apply. The RPCDA does not apply to transfers by a fiduciary who is not an owner occupant of the subject property in the course of the administration of a…trust. 60 O.S.2011 § 838(A)(3). With respect being a “fiduciary,” there is no indication that the Legislature intended for the exemption to apply when the trustee and the beneficiary are different but not when they are the same. The exemption may apply when the trustee and the beneficiary are the same person. Further, an “owner-occupant” must be both an owner an occupant, not either or. Therefore, the Coulimores are not owner-occupants with respect to this property as it is undisputed that they have never resided in the property. Finally, it is not necessary for the Coulimores to be deceased for the Trust to be “administered.” Trusts are also “administered” during the lifetime of the settlors of the trust. The real property transaction at issue is exempt from the RPCDA pursuant to Title 60 O.S.2011 § 838(A)(3) because the transaction is a transfer by a fiduciary who is not an owner-occupant of the subject property in the course of the administration of a trust. |
| Outcome: | Affirmed 7-1 |
| Vote: | Concur: Darby, C.J., Kane, V.C.J. (author), Winchester, Edmonson, Gurich, Rowe and Kuehn, JJ. Dissent: Kauger, J. Not participating; Combs, J. |
| Other: | No written dissent. |
