Does an “as is” clause in a contract of sale immunize the land seller from a fraud claim?

Continuing the conflicts among state courts on this question, a Florida court chose a “yes” answer to the question of whether a seller can get away with fraud if the land sales contract contains an “as is” clause or a “merger clause” making the express terms of the written agreement the only legitimate source of obligations between the parties. Fla. Holding 4800 v. Lauderhill Mall Inv., LLC, 317 So. 3d 121 (Fla. Dist. Ct. App. 2021).


In so doing, the court adopts the majority rule in Danann Realty Corp. v. Harris, 157 N.E.2d 597 (N.J. 1959), and rejects the position of dissenting Judge Fuld, a view that has been adopted in several other states and may be the more popular rule now, see Snyder v. Lovercheck, 992 P.2d 1079 (Wyo. 1999); Golden Cone Concepts, Inc. v. Villa Linda Mall, Ltd, 820 P2d 1323 (NM 1991); TIAA Global Invs., LLC v. One Astoria Square LLC, , 7 N.Y.S.3d 1 (App Div 2015); and Cirillo v. Slomin’s Inc., 768 N.Y.S.2d 759 (Sup. Ct. 2003).


The argument for denying a fraud claim is that the buyer waived the right to rely on oral statements (or written statements outside the contract) in signing the agreement. The argument for allowing a fraud claim is that an agreement to the rely on the written agreement is not permission to be defrauded since fraud negates consent making then notion of a free contract senseless.