Virginia Lawyers Weekly

A Fairfax Circuit Court sustains Bank of America’s demurrer to a breach of warranty claim filed by two plaintiffs who say they own two condominium parking spaces conveyed to them by Bank of America by special warranty deed, but claimed by others.

Count III of the complaint pleads a cause of action for breach of warranty. Plaintiffs Yousef and Denise Shehadeh raise the issue of a breach of contract in their opposition to Bank of America’s demurrer. They suggest that Bank of America may have breached its contract to the Shehadehs if Bank of America did not own the parking spaces described in the deed conveying the property to the Shehadehs. However, because count III only makes out a cause of action for breach of warranty, the court cannot consider whether the Shehadehs may have a cause of action against Bank of America for breach of contract.

As to the breach of warranty claim, the complaint alleges that Bank of America conveyed the property to the Shehadehs through a special warranty deed. Bank of America could only breach its warranty to the Shehadehs if the claim against the Shehadehs title to the parking spaces was made by a person “claiming … by, through or under” Bank of America.

Defendants Pak, Schwartz and Fountains at McLean in no way derive their claims to the property from Bank of America, as no relationship between these parties is alleged in the complaint. Instead, Pak, Schwartz and the Fountains derive their claim through Hart, who conveyed his interest in the parking spaces to Pak, Schwartz and the Fountains, after he had already conveyed his interest in the parking spaces to Bank of America. Regardless of whether the Fountains is correct in asserting that Bank of America was not the rightful owner of the parking spaces, the claims against the spaces are not made by “persons claiming … by, through or under” Bank of America. Therefore, the demurrer must be sustained with prejudice.

Shehadeh v. Fountains at McLean Condominium Unit Owners Ass’n (Bellows, J.) No. CL 2008-13077, June 1, 2009; Fairfax Cir.Ct.; Thomas K. Plofchan, Kevin F.X. DeTurris, Wayne Cyron, Alex Laufer for the parties. VLW 009-8-125, 5 pp.

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