In this case, the seller of commercial property did not disclose to the buyer the presence of a covered-over, non-hazardous dump located on a small part of a 442-acre tract of land. Long after the sale, the buyer brought suit against the seller and related parties. When the trial court denied the defendants’ motions for summary judgment, it applied the passive concealment doctrine, an exception to the general rule of caveat emptor, in favor of the buyer. But that doctrine applies only to non-commercial transactions, and the parties did not incorporate any similar protection or relevant representations or warranties in the sales agreement. Accordingly, the defendants are entitled to summary judgment. In 1988, Farm & Home Life Insurance Company owned a 442-acre tract of zoned-industrial land in Douglas County, Georgia, on which Farm & Home’s property manager, Bart Hulsey, operated an illegal open dump consisting of construction waste, land clearing debris and some household garbage. County and state officials became aware of the dump in March 1988, and the Georgia Department of Natural Resources Environmental Protection Division “EPD” directed Farm & Home to either remove the materials or bury them beneath two feet of clean earth and provide a vegetative cover. The purpose of the remedial order was to address the threat to human health and the environment resulting from an open dump. Farm & Home buried the materials, and on May 26, 1988, the EPD certified that “the site had been closed in a manner which complied with the minimum requirements of the Solid Waste Management Act and Rules.” Estimates of the size of the site range up to 2.3 acres. Documents and records maintained by the EPD and Douglas County regarding the dump and the remediation effort have been continuously available to the public for inspection since 1988.
On June 19, 1989, Farm & Home entered into a contract to sell the property to Buckhead Farms, Inc., and Buckhead later assigned its rights under the contract to KGE Associates Limited Partnership. In Section 10 h of the agreement, Farm & Home represented that it was not aware of any claim, action or other proceeding, in progress, pending, or threatened, that would adversely affect consummation of the sale, or any facts which could form the basis of such a claim.1 During the negotiation of the agreement, Buckhead agreed to drop warranties that provided that Farm & Home was not aware of third parties dumping hazardous waste on the property or aware of any “hazardous or toxic materials, substances or waste” alleged to exist on or below the Property.
