Author: LegalEase Solutions
- Is the homeowner required to disclose information about the salt leak if/when he sells the home?
- Is there any liability on the part of General Motors apart from providing notice to homeowners, such as-
(i) Do they have any other duties?
(ii) Must GM compensate the homeowner for the loss in value to their homes?
Under common law, a land vendor who surrenders title, possession, and control of property shifts all responsibility for the land’s condition to the purchaser under the doctrine of caveat emptor. Also, if an “as is” clause exists within a purchase agreement, then the buyer bears the risk of loss under an “as is” contract unless the seller fails to disclose concealed defects known to him. A salt leak would likely be considered a concealed defect, and the homeowner may have a duty under common law to disclose information about the same to a buyer. There are also exceptions under the doctrine which could impose liability on the seller under the common law.
In Michigan, a seller is required by law to inform the prospective buyer about the condition of the property under the Seller Disclosure Act (“SDA”). Moreover, under Michigan’s Natural Resources and Environmental Protection Act, a seller with knowledge that their property is contaminated in any way must notify the purchaser in writing that the property is a contaminated.
On the issue of liability on the part of General Motors, apart from providing notice, the aforementioned Natural Resources and Environmental Protection Act imposes certain duties on General Motors to undertake measures to prevent further contamination in accordance with MCL § 324.20107a., . If a person responsible for such contamination does not perform their duty, then he shall be liable for response activity costs and natural resource damages.
Likewise, even the Michigan Department of Environment Quality (“DEQ”) has a duty and may take any response activity at a facility where the DEQ determines such action is necessary to protect the public health, safety, or welfare, or the environment. After undertaking such response activities, the DEQ may even bring a civil action against all liable persons or entities to recover the costs for undertaking response activities.
- (i)In General
Generally, “[u]nder the common law, a land vendor who surrenders title, possession, and control of property shifts all responsibility for the land’s condition to the purchaser.” Christy v. Glass, 329 N.W.2d 748, 752 (Mich. 1982). “Caveat emptor prevails in land sales, and the vendor, with two exceptions, is not liable for any harm due to defects existing at the time of sale.”Id. .
“Caveat emptor is a doctrine of long standing in Michigan.” Id. at 754.“It owes its genesis to the idea that a buyer of real property, dealing at arm’s length with the vendor, would physically inspect the land before consummating the transaction. Such a buyer would not later be heard to complain that the land was not as expected.” Id. Similarly,“ the buyer bears the risk of loss under an “as is” contract unless the seller fails to disclose concealed defects known to him. Caveat emptor prevails in land sales, and the vendor, with two exceptions, is not liable for any harm due to defects existing at the time of sale.” Farm Bureau Mut. Ins. Co. v. Wood, 418 N.W.2d 408, 411 (Mich. App. 1987).
The exceptions are:
The first exception is the vendor’s duty to disclose to the purchaser any concealed condition known to him which involves an unreasonable danger. Failure to make such a disclosure or efforts to actively conceal a dangerous condition render the vendor liable for resulting injuries. The second exception is that a vendor is liable to those outside the land for a dangerous condition on the land after the sale until the purchaser discovers or should have discovered it.
Clemens v. Lesnek, 505 N.W.2d 283, 285 (Mich. App. 1993).
“Under both exceptions, then, knowledge of the defect on the part of the purchaser relieves the vendor of any duty or liability.” Id.
Under that circumstance:
[T]he plaintiffs[buyers/purchasers] in that case were required to prove the following in order to prevail on their claims:
(1) at the time of the sale, there was on the property a concealed condition that involved an unreasonable danger;
(2) the condition was known to the sellers; and
(3) the buyers had no knowledge of the defect.
However, the Court of Appeals was of the opinion “that they [buyers/purchasers] were not required to prove that undisclosed hidden defects were unreasonably dangerous in order for them to recover damages for fraud despite the fact that the purchase agreement contained an ‘as is’ clause.” Id.
“‘[A]s is’ clause in the purchase agreement indicates that the parties in the present case considered that between them the risk of the present condition of the property should lie with the purchasers,”. Id. “‘As is’ clauses allocate the risk of loss arising from conditions unknown to the parties. . . . ‘As is’ clauses also transfer the risk of loss where the defect should have reasonably been discovered upon inspection, but was not.” Lorenzo v. Noel, 522 N.W.2d 724, 726 (Mich. App. 1994). “As explained by our Supreme Court, “as is” clauses operate to waive those implied warranties that accompany the sale of property.” M & D, Inc. v. McConkey, 573 N.W.2d 281, 284 (Mich. App. 1997), opinion vacated (Nov. 26, 1997), opinion reinstated sub nom. M&D, Inc. v. W.B. McConkey, 585 N.W.2d 33 (Mich. App. 1998). “Since implied warranties protect against latent defects, an ‘as is’ clause will impose upon the purchaser the assumption of the risk of latent defects.” Id.
However, “if a seller makes fraudulent representations before a purchaser signs a binding agreement, then an ‘as is’ clause may be ineffective. Thus, the plaintiffs [buyers]could recover damages for fraudulent concealment even if the defects did not involve unreasonable danger.” Clemens v. Lesnek, 505 N.W.2d 283, 285 (Mich. App. 1993).
Thus,“the suppression of a material fact, which a party in good faith is duty-bound to disclose, is equivalent to a false representation and will support an action in fraud.” Lorenzo v. Noel, 522 N.W.2d 724, 725 (Mich. App. 1994).
In Conahan v Fisher., 463 NW2d 118, 119 (Mich. Ct. App.1990), the purchasers of home brought action against vendors to recover costs of termite infestation repairs to house they purchased. The purchase agreement consisted of ‘as is’ clause. The purchasers viewed the house themselves and had a professional inspection of the house performed which revealed no termite infestation. However, in a letter attached to plaintiffs’ response to defendants’ motion for summary disposition, plaintiffs’ termite expert stated that a competent inspector qualified to make recommendations regarding structural soundness for residences should reasonably have been expected to have discovered evidence of active termites in that home. Thus, the Court of Appeals, held that termite condition was not concealed and thus, vendors had no duty to disclose termite problem. Id.
(ii) In Michigan
In Michigan, before selling residential property, a seller is required by law to tell the prospective buyer certain things about the property’s physical condition. This comes from the Michigan statute, the Seller Disclosure Act 92 of 1993 andates that prior to the execution of a contract for the sale of residential real property, a vendor must disclose to the purchaser, in a written SDS [Seller Disclosure Statement], certain information concerning the condition of the property.
Hence,“the SDA[Seller Disclosure Act] requires a transferor of certain real property to answer all items required by MCL 565.957 honestly, on the basis of information actually known to the transferor at the time the SDS is completed. Thus, the SDA creates a duty of disclosure regarding specified items.” Roberts v. Saffell, 760 N.W.2d 715, 723 (Mich. App. 2008) aff’d, 766 N.W.2d 288 (Mich. 2009).
As per the SDA, MCL 565.957, provides a form that is to be filled in by the seller that discloses all information regarding the condition of the property to be sold.
The SDA [Seller Disclosure Act] provides that:
(1) The transferor or his or her agent is not liable for any error, inaccuracy, or omission in any information delivered pursuant to this act if the error, inaccuracy, or omission was not within the personal knowledge of the transferor, or was based entirely on information provided by public agencies or provided by other persons specified in subsection (3), and ordinary care was exercised in transmitting the information. It is not a violation of this act if the transferor fails to disclose information that could be obtained only through inspection or observation of inaccessible portions of real estate or could be discovered only by a person with expertise in a science or trade beyond the knowledge of the transferor.
In Roberts v. Saffell, 760 N.W.2d 715 (Mich. App. 2008) aff’d, 766 N.W.2d 288 (Mich. 2009), the plaintiffs who are the purchasers, discovered a significant leak in the home’s roof and sued the defendant (seller) under theories of fraud, negligent misrepresentation, and breach of contract arising out of defendants’ alleged failure to disclose the leaking roof. But defendant’s SDS[Seller Disclosure Statement] disclosed that the roof had leak in the past but has been completely repaired. However, the Court of Appeals held that seller knew about the leak yet proceeded in bad faith by impermissibly failing to disclose the condition. Id. at. 721.
(iii) Notice upon Transfer of Property Interest
Sellers with knowledge that their property is contaminated in any way and if within the meaning of the statute NREPA [Michigan’s Natural Resources and Environmental Protection Act] the property comes under the purview of facility, then the seller must notify the purchaser in writing that the property is a facility. The relevant provision states that:
Sec. 20116. (1) A person who has knowledge or information or is on notice through a recorded instrument that a portion or the entirety of a parcel of that person’s property is a facility shall not transfer an interest in that real property unless he or she provides written notice to the purchaser or other person to which the property is transferred disclosing the known general nature and extent of the hazardous substance release and any land or resource use restrictions that are known by the person to apply. A restrictive covenant or notice that contains the required information that is recorded in the deed records for the property satisfies this requirement.
(2) The owner of real property for which a notice required in subsection (1) has been recorded may, upon completion of a response activity under this part for the facility, record with the register of deeds for the appropriate county a certification that the response activity has been completed.
MCL § 324.20116
The term ‘facility’ as per the statute is defined as:
“Facility” means any area, place, parcel or parcels of property, or portion of a parcel of property where a hazardous substance in excess of the concentrations that satisfy the cleanup criteria for unrestricted residential use has been released, deposited, disposed of, or otherwise comes to be located.
MCL § 324.20101
Hence, “if a person knows that the real property is a facility, the person “shall not” transfer an interest in that real property unless he or she provides written notice to the transferee that the real property is a facility. The word “shall” is generally used to designate a mandatory provision.” Lapeer LLC v Rice., 810 NW2d 293, 297 (Mich. Ct. App. 2010).
- Michigan’s Natural Resources and Environmental Protection Act[NREPA]
The NREPA governs the cleanup and redevelopment of contaminated properties in Michigan. Part 201 of the NREPA addresses liabilities associated with owning and operating contaminated properties in Michigan while simultaneously encouraging their redevelopment and reuse.
Part 201’s predecessor was the Michigan Environmental Response Act (MERA). MERA imposed status liability on parties such as owners, operators, arrangers (sometimes called generators), and transporters for cleaning up contaminated properties. MERA was enacted in 1982 as Michigan’s state-law counterpart to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The status liability imposed by MERA unnecessarily chilled property transactions and real estate development in Michigan, so the legislature amended MERA. The result of that amendment process and the recodification of Michigan’s environmental laws was Part 201.
Here, in the instant case, General Motors has issued a notice to the homeowner and other 19 homes pursuant to MCL § 324.20114(b)(ii)and(iii) of Michigan’s Natural Resources and Environmental Protection Act. Accordingly, the statute provides that:
Sec. 20114. (1) Except as provided in subsection (4), an owner or operator of property who has knowledge that the property is a facility shall do all of the following with respect to a release for which the owner or operator is liable under section 20126:1
(a) Subject to subsection (6), determine the nature and extent of the release at the facility.
(b) Make the following notifications:
(i) If the release is of a reportable quantity of a hazardous substance under 40 CFR 302.4 and 302.6 (July 1, 2012 edition), report the release to the department within 24 hours after obtaining knowledge of the release.
(ii) If the owner or operator has reason to believe that 1 or more hazardous substances are emanating from or have emanated from and are present beyond the boundary of his or her property at a concentration in excess of cleanup criteria for unrestricted residential use, notify the department and the owners of property where the hazardous substances are present within 30 days after obtaining knowledge that the release has migrated.
(iii) If the release is a result of an activity that is subject to permitting under part 6152and the owner or operator is not the owner of the surface property and the release results in hazardous substance concentrations in excess of cleanup criteria for unrestricted residential use, notify the department and the surface owner within 30 days after obtaining knowledge of the release.
MCL § 324.20114
Therefore, General Motors within the meaning of NREPA [Michigan’s Natural Resources and Environmental Protection Act] is an owner or operator of property who has knowledge that the property is contaminated and is liable in accordance with the statute mentioned below:
Sec. 20126. (1) Notwithstanding any other provision or rule of law and except as provided in subsections (2), (3), (4), and (5) and section 20128,1 the following persons are liable under this part:
(a) The owner or operator of a facility if the owner or operator is responsible for an activity causing a release or threat of release.
(b) The owner or operator of a facility at the time of disposal of a hazardous substance if the owner or operator is responsible for an activity causing a release or threat of release.
MCL § 324.20126
All owners and operators of a property including owners and operators who are not liable under MCL § 324.20126 who have knowledge that the property is contaminated above residential criteria must exercise some due care.
Hence, “a person who owns or operates property that the person knows is a facility containing hazardous substances shall, among other things, undertake measures that are necessary to prevent exacerbation of the existing contamination.” Lapeer LLC v Rice., 810 NW2d 293, 297 (Mich. Ct. App. 2010).
The relevant statute provides that:
Sec. 20107a. (1) A person who owns or operates property that he or she has knowledge is a facility shall do all of the following with respect to hazardous substances at the facility:
(a) Undertake measures as are necessary to prevent exacerbation.
(b) Exercise due care by undertaking response activity necessary to mitigate unacceptable exposure to hazardous substances, mitigate fire and explosion hazards due to hazardous substances, and allow for the intended use of the facility in a manner that protects the public health and safety.
(c) Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party and the consequences that foreseeably could result from those acts or omissions.
(d) Provide reasonable cooperation, assistance, and access to the persons that are authorized to conduct response activities at the facility, including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response activity at the facility. Nothing in this subdivision shall be interpreted to provide any right of access not expressly authorized by law, including access authorized pursuant to a warrant or a court order, or to preclude access allowed pursuant to a voluntary agreement.
(e) Comply with any land use or resource use restrictions established or relied on in connection with the response activities at the facility.
(f) Not impede the effectiveness or integrity of any land use or resource use restriction employed at the facility in connection with response activities.
(2) The owner’s or operator’s obligations under this section shall be based upon the current numeric cleanup criteria under section 20120a(1)1 or site-specific criteria approved under section 20120b.2
(3) A person who violates subsection (1) who is not otherwise liable under this part for the release at the facility is liable for response activity costs and natural resource damages attributable to any exacerbation and any fines or penalties imposed under this part resulting from the violation of subsection (1) but is not liable for performance of additional response activities unless the person is otherwise liable under this part for performance of additional response activities. The burden of proof in a dispute as to what constitutes exacerbation shall be borne by the party seeking relief.
MCL § 324.20107a
Since Part 201 of NREPA’s predecessor was the Michigan Environmental Response Act (MERA), the provisions of MERA imposed liability on parties for cleaning up contaminated properties and they also has the duty to take reasonable care. If a person responsible for such contamination does not perform their duty, then he shall be liable for response activity costs and natural resource damages.
“Under the MERA, therefore, a private party may recover those response activity costs that are ‘required’ in remediating a contaminated site.” Cipri v. Bellingham Frozen Foods, Inc., 596 N.W.2d 620, 624 (Mich. App. 1999).”Compensatory damages may also be awarded for the full value of injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing the injury, destruction, or loss resulting from the release.”Id ..
Liable and non-liable parties alike may undertake actions to address the release or threat of release of hazardous substances from a facility. In fact, liable parties are generally required to initiate such activities, which usually fall under Part 201’s definition of ‘response activities’, and it provides that:
(vv) “Response activity” means evaluation, interim response activity, remedial action, demolition, providing an alternative water supply, or the taking of other actions necessary to protect the public health, safety, or welfare, or the environment or the natural resources. Response activity also includes health assessments or health effect studies carried out under the supervision, or with the approval of, the department of community health and enforcement actions related to any response activity.
MCL § 324.20101
Remedial action, which is within the definition of response activity, is also broadly defined as follows:
(qq) “Remedial action” includes, but is not limited to, cleanup, removal, containment, isolation, destruction, or treatment of a hazardous substance released or threatened to be released into the environment, monitoring, maintenance, or the taking of other actions that may be necessary to prevent, minimize, or mitigate injury to the public health, safety, or welfare, or to the environment.
MCL § 324.20101
Accordingly, “[w]ater’s safeness for drinking may be an appropriate factor to consider in determining whether particular response costs were reasonable.” Vill of Milford v K-H Holding Corp, 390 F3d 926, 934-35 (CA 6 2004). “[I]t might be unreasonable to remove all contaminants from water that is safe to drink and certain to be safe from further contamination.” Id. at 935. “But where a release has occurred and there may be potential for further contamination, some response costs will almost always be reasonable, to ensure that the water remains safe.” Id.
Whenever, a remedial action is invoked:
Sec. 20120. (1) All of the following shall be considered when a person is selecting a remedial action or the department is selecting or approving a remedial action:
(a) The effectiveness of alternatives in protecting the public health, safety, and welfare and the environment.
(b) The long-term uncertainties associated with the proposed remedial action.
(c) The persistence, toxicity, mobility, and propensity to bioaccumulate of the hazardous substances.
(d) The short- and long-term potential for adverse health effects from human exposure.
(e) Costs of remedial action, including long-term maintenance costs. However, the cost of a remedial action shall be a factor only in choosing among alternatives that adequately protect the public health, safety, and welfare and the environment, consistent with the requirements of section 20120a.1
(f) Reliability of the alternatives.
(g) The potential for future response activity costs if an alternative fails.
(h) The potential threat to human health, safety, and welfare and the environment associated with excavation, transportation, and redisposal or containment.
(i) The ability to monitor remedial performance.
(j) For remedial actions that require the opportunity for public participation under section 20120d,2 the public’s perspective about the extent to which the proposed remedial action effectively addresses requirements of this part.
(2) Evaluation of the factors in subsection (1) shall consider all factors in balance with one another as necessary to achieve the objectives of this part. No single factor in subsection (1) shall be considered the most important.
MCL § 324.20120
Department of Environment Quality- Duties
The DEQ[Department of Environment Quality] may take any response activity at a facility that is consistent with Part 201 and the DEQ determines are necessary to protect the public health, safety, or welfare, or the environment. After undertaking such response activities with a corrective action plan, the DEQ may then bring a civil action against all liable persons to recover the costs it incurs.
It provides that:
Sec. 20118. (1) The department may take response activity or approve of response activity proposed by a person that is consistent with this part and the rules promulgated under this part relating to the selection and implementation of response activity that the department concludes is necessary and appropriate to protect the public health, safety, or welfare, or the environment.
(2) Remedial action undertaken under subsection (1) may address all or a portion of contamination at a facility as follows:
(a) Remedial action may address 1 or more releases at a facility.
(b) Remedial action may address 1 or more hazardous substances at a facility.
(c) Remedial action may address contamination in 1 or more environmental media at a facility.
(d) Remedial action may address contamination within the entire facility or only a portion of a facility.
(e) Remedial action may address contamination at a facility through any combination of subdivisions (a) through (d).
MCL § 324.20118.
Therefore, a person may bring an action in circuit court in Ingham County at any time to require the DEQ to perform a nondiscretionary duty under Part 201. A person may bring such an action only after providing the DEQ written notice at least sixty days before bringing suit. The notice must state the person’s intent to sue, the basis for the suit, and the relief to be requested.
For the purpose, the statute provides that:
Sec. 20135. (1) Except as otherwise provided in this part, a person, including a local unit of government on behalf of its citizens, whose health or enjoyment of the environment is or may be adversely affected by a release from a facility or threat of release from a facility, other than a permitted release or a release in compliance with applicable federal, state, and local air pollution control laws, by a violation of this part or a rule promulgated or order issued under this part, or by the failure of the directors to perform a nondiscretionary act or duty under this part, may commence a civil action against any of the following:
(a) An owner or operator who is liable under section 201261 for injunctive relief necessary to prevent irreparable harm to the public health, safety, or welfare, or the environment from a release or threatened release in relation to that facility.
(b) A person who is liable under section 20126 for a violation of this part or a rule promulgated under this part or an order issued under this part in relation to that facility.
(c) One or more of the directors if it is alleged that 1 or more of the directors failed to perform a nondiscretionary act or duty under this part.
(2) The circuit court has jurisdiction in actions brought under subsection (1)(a) to grant injunctive relief necessary to protect the public health, safety, or welfare, or the environment from a release or threatened release. The circuit court has jurisdiction in actions brought under subsection (1)(b) to enforce this part or a rule promulgated or order issued under this part by ordering such action as may be necessary to correct the violation and to impose any civil fine provided for in this part for the violation. A civil fine recovered under this section shall be deposited in the fund. The circuit court has jurisdiction in actions brought under subsection (1)(c) to order 1 or more of the directors to perform the nondiscretionary act or duty concerned.
(3) An action shall not be filed under subsection (1)(a) or (b) unless all of the following conditions exist:
(a) The plaintiff has given at least 60 days’ notice in writing of the plaintiff’s intent to sue, the basis for the suit, and the relief to be requested to each of the following:
(i) The department.
(ii) The attorney general.
(iii) The proposed defendants.
(b) The state has not commenced and is not diligently prosecuting an action under this part or under other appropriate legal authority to obtain injunctive relief concerning the facility or to require compliance with this part or a rule or an order under this part.
(4) An action shall not be filed under subsection (1)(c) until the plaintiff has given in writing at least 60 days’ notice to the directors of the plaintiff’s intent to sue, the basis for the suit, and the relief to be requested.
MCL § 324.20135
As a result, the “statutory framework intended to recover the costs of various environmental response activities from the parties necessitating the response. The statutory scheme provides at least eleven detailed sections that attempt to establish the response cost liability of persons associated with the use or storage of hazardous substances on their property.” Howell Twp v Rooto Corp., 670 NW2d 713, 722 (Mich. Ct. App. 2003). “Thus, [t]he breadth and detail of this statutory scheme provides an indication that the Legislature has pre-empted the field of regulation relating to the recovery of costs incurred in responding to an incident involving the release of environmentally hazardous substances.” Id.
Michigan Environmental Protection Act [MEPA]
The Part 17 of NREPA consists MEPA. When MEPA was enacted in 1970, the language of MEPA listed all authorities who can maintain an action. But during 1994, when there was a recodification of Michigan’s environmental statutes in NREPA, 1994 PA 451, MCL 324.101 et seq., the legislature shortened this language of MEPA and was subsequently simplified. Thus, decisions interpreting MEPA before the enactment of 1994 PA 451 can be applied to the present language in MEPA.
The Michigan Environmental Protection Act authorizes courts to prevent conduct that harms the environment based on evidence presented in litigation. Under MEPA, private parties may protect the environment in much the same way as they have historically protected property and contract rights. The statute modifies the traditional view that only public agencies protect the environment. MEPA applies to all natural resources, public and private. The act is not limited to natural resources affecting land in which there is a public trust or a right of public access.
In Cipri v. Bellingham Frozen Foods, Inc., 596 N.W.2d 620 (Mich. App. 1999), owner of a lake filed an environmental action against various defendants, alleging that leachate from fermenting sweet corn husks had flowed into the lake and killed all of its aquatic life. The Court of Appeals determined that the sweet corn by-products were a “hazardous substance” under the MERA because they could and did become injurious to the environment. Id. The Court also found that the sweet corn leachate had polluted the lake and killed its fish, and awarded tort damages. The statutory MEPA and MERA claims were then decided by the court. Id. at 625.
“[T]he former Michigan Environmental Protection Act (MEPA) provided for “declaratory and equitable relief against … any person … for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction.” Id. at 623. “To determine whether the plaintiff has established a prima facie claim under the MEPA, the court must determine whether the challenged action by the defendant rises to the level of an impairment or destruction of a natural resource so as to constitute an environmental risk and justify judicial intervention.” Wortelboer v. Benzie Co., 220, 537 N.W.2d 603 (Mich. Ct. App. 1995).
For that purpose:
Plaintiff must show that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein…. The court may [then] grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction.
Cipri v Bellingham Frozen Foods, Inc., 596 NW2d 620, 623 (Mich. Ct. App. 1999).
In short, where impairment or destruction of a natural resource is found, “[r]estoration of the natural habitat is a proper remedy under the [M]EPA.” Stevens v. Creek.,; , 328 N.W.2d 672 (Mich. Ct. App. 1982).
Based on the foregoing, it appears that statutes enacted by the state of Michigan to govern clean-up and redevelopment of contaminated properties imposes duties and mandate response activities upon the persons responsible for such contamination. These are guaranteed to the individuals to ensure protection of public health, safety and environment.
Michigan law also imposes certain duties on sellers of contaminated properties and it seems that concealing a condition of the property that is of unreasonable danger during a sale invariably results in seller bearing the liability for any loss. Accordingly, should the homeowner in this case transfer his property at any time, he has a duty to disclose the latent defect (the contamination) to potential buyers under Michigan law.