Szabo

At issue is whether a buyer of real property may enforce a warranty contained in the agreement for sale notwithstanding the absence of any reference to it in the grant deed that conveyed title. We have concluded that the deed does not necessarily preclude enforcement, and that the trial court erred in making a pretrial order summarily adjudicating that issue against plaintiffs.

A first amended complaint, filed by petitioners, (hereinafter called plaintiffs) alleges that they, as buyers, and the Hodgkinsons, husband and wife, entered into a form of agreement called “Deposit Receipt and Agreement of Sale” whereby the Hodgkinsons agreed to sell to plaintiffs certain real property improved with a structure containing four rental units. The agreement provided “property to be sold ‘as is’ No termite.”

The agreement also contained this language: “Seller represents that said property and the sale thereof conforms with all applicable ordinances, laws, zoning, deed restrictions, and other regulations and agrees to save broker and purchaser harmless on account of breach of any such warranty.”

The sale was carried out through an escrow, and a grant deed from the Hodgkinsons to…