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Posted on Tuesday, January 26, 2016

Builder “Silences” Noise Lawsuit Stemming from Alexandria Sale

A homeowner’s fraud lawsuit against builder Pulte Home Corporation based on excessive noise in the homeowner’s unit was recently dismissed by the U.S. District Court for the Eastern District of Virginia, Alexandria Division. The case is Devine v. Pulte Home Corporation, Case No. 1:15-cv-1361 (E.D.Va. Dec. 4, 2015). U.S. District Court Judge James C. Cacheris granted Pulte’s motion for judgment on the pleadings and dismissed the homeowner’s lawsuit.The Plaintiff homeowner in that case purchased an apartment built by Pulte in Alexandria’s Potomac Yard community along Route 1. The homeowner alleged that he was initially concerned about traffic noise, but decided to purchase the unit based on Pulte’s representations that the unit would be of “airport quality” in blocking out traffic noise, and was “luxurious.”

Shortly after moving into the unit, the Plaintiff could hear traffic noise, conversations of passersby from Route 1, and noises from the upstairs apartment. Pulte responded to Plaintiff’s noise complaints stating that the unit passed Pulte’s sound tests, and no further action would be taken. Plaintiff then sued Pulte, bringing fraudulent inducement of contract and Virginia Consumer Protection Act (VCPA) claims.

The Court dismissed the homeowner’s fraud claim, determining that Pulte’s statements regarding the unit – that it was “luxurious” and of “airport quality” in blocking out traffic noise – constituted mere “puffery,” or trade talk, open to subjective interpretation, and therefore could not serve as factual grounds for an actionable fraud claim.

By way of comparison, the Court cited factual statements that were deemed actionable for fraud claims to proceed. In Yuzefovsky v. St. John’s Wood Apartments, et al., 261 Va. 97, 110-11 (2001), the actionable statement was that a development was “crime-free,” that “police officers lived there,” and that “police vehicles patrolled the development.” In Tate v. Colony House Builders, Inc., 257 Va. 78, 83-84 (1999), the actionable statement was that a new dwelling was “free from structural defects.”

The Pulte case shows how fraud claims must be carefully constructed to ensure they meet the heightened pleading standard mandated by Virginia law. Pulte’s recent dismissal further clarifies what Virginia courts deem to be actionable fraud statements, and that mere puffery or sales talk are too objective to serve as the foundation for fraud in the inducement claims.

Katie Lipp is a Senior Associate Attorney and head of the construction practice at Berenzweig Leonard LLP. She can be reached at klipp@berenzweiglaw.com

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