AboutTimmy Chou Expertise I am a experienced Mediator and a partner in a management consulting firm. As a mediator I work as a third-party neutral and specialize in partnership/shareholder disputes, management/labor issues, company culture difficulties, and family-owned business problems. I can help describe why alternative dispute resolution may be a good choice for you. As an experienced management consultant I may be able to offer creative ideas to help resolve your organizational and business problems and disputes. "If you say conflict, I say opportunity".
Question I purchased my mom in December 2005. In the time that we've been here we've dealt with several issues that the seller's didn't disclose and I didn't notice. I figured it was my own fault for not noticing so I didn't pursue anything but now when I talk to people they say these things should've been disclosed.
The basement leaks considerably with every rain. The seller's did disclose the leaking but said that it was fixed and it wasn't. Rain also leaks under the back door threshold and through the floor to the basement. This was NOT disclosed and we've realized they knew about it because the foundation walls are rotten and the floor joists are bowed. There is a 2x4 where they tried to fix it. Last but not least when we had the inspection done, there was no exterior vent on the bathroom sink so we required that to be fixed by a licensed plumber. They had it fixed but since then we've noticed that it wasn't fixed properly, the cap around the vent pipe was placed on top of the shingles and when it rains, rain water drips down from the hole in the ceiling and down the bathroom wall.
Is there any recourse after such a long period of time? My concern is that I've surpassed some statute of limitations and that I can't prove they knew about any of the problems.
Answer Thank you for your question!
As I always mention to questioners, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement. The case you describe here is unfortunately very typical. I am not a lawyer, nor can I mediate your dispute with just you alone but I can respond to your question from my business consulting experience. You may wish to consult an attorney.
Many properties are sold "as is" and it is up to you to determine all hidden items. Unless you can prove an "intent" to defraud it is a difficult matter. The major requirement is to not tell lies, rather than disclose every little creak and crack. Some of what you describe may be sketchy. Identify any examples of clear dishonesty.
The seller is not obliged to consider what issues you might consider material, only the issues the seller believes are material, and this materiality debate usually is won by the seller, as you are charged with proper due diligence -- despite what is or is not alleged by a seller. Nevertheless, there may be more case law or statutory law on this issue in your state that further defines playing in-bounds and you may have grounds here. As I have said, the burden is on you to prove that there is a problem. The seller can disclose what he wants but what the seller cannot do is lie and here is where you must focus your efforts.
The seller is entitled to fill cracks and to paint walls and add 2x4s all he wants but that does not necessarily constitute a "fraud" on you, as the seller does not have to be a construction expert. If there is documentary evidence of massive leaking (you will need an expert witness here) you must be prepared to show this. Also you must show somehow that the seller KNEW of the leaking since it is not required that the seller be an expert when he discloses stuff, so the leaking must be shown to be severe and not likely to be missed.
Again the burden is on buyers to do their due diligence during the purchase and not to rely on amateur sellers disclosing things they may not know a thing about. Work on proving a deliberate fraud and you will prevail here, but be prepared to have to spend considerable funds on lawyers and experts -- and you also must determine whether the seller even has anything to recover before spending all this money.
Be sure you document all contracts and every instance of meetings and discussions. Be as detailed as possible.
These are some ideas. Feel free to follow up with additional questions.
In all my answers, and for your information, the pros and cons of the types of dispute resolution are provided below.
GOOD LUCK!
Arbitration, Mediation, and Litigation
Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system
Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships
Negatives of Arbitration
It's a compromise, no %100 winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process
Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.
Benefits of Mediation:
Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions
Negatives of Mediation
may not reach a binding decision
unskilled mediator
Litigation: using the judicial system to resolve disputes
Benefits of litigation:
a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final
Negatives of Litigation:
waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record
