Expert: Matt Heisler - 10/24/2008

Question
Hello,
My husband and I bought a new home in Massachusetts almost two years ago. Over the last year we have been attempting to work with both the city and our builder because our lot is the lowest in the area and therefore collects runoff rainwater (luckily, due to the grading of our driveway, the water doesn't end up in our house, but it is very close to flooding our garage, especially in the winter with snow buildup). The water pools up to 5" deep and spans the width of our driveway and into the lawn on either side.  Even though the rainwater is ending up on our property because it is circumventing the street drain, the street is private so I am unable to get anything from the city with the exception of advice.  Our builder proposed a drain installation on our property that would almost certainly remedy this situation but he won't give me any specific dates for installation, and has recently been ignoring me altogether. A city engineer said the water on our lot is a pre-existing issue; even before the house was built in 2006 our lot was always a pool of water during a rain. This information was never disclosed to us before or even after we purchased the home. Do we have any legal recourse to make them install the drainage as they proposed?  
Thank you in advance.

Answer
Hello-

I don't think you have any legal recourse, but it depends on a couple of factors.  Please note, I'm not an attorney, so consider this a "layman's" interpretation of the disclosure laws.

1) Who you bought the house from:  If you bought it direct from the seller/owner, you're probably out of luck.  Owners of property who are not licensed real estate agents are general exempt from disclosure laws. Some builders are exempt, and some are agents, so it depends on your situation.  But note #3 below.

2) There needs to be more than inconvenience, there needs to be monetary damages.  Put another way, If I buy a house and decide that the stove isn't very good, because it takes too long to boil water, there's no case there.  It was up to me to examine the stove for acceptability.  However, if the stove is broken, and doesn't work, and it was working on inspection, now I can request repair/replace.

3) You need to have proof that the seller KNEW of the issue BEFOREHAND, and DID NOT DISCLOSE the issue.  If the seller didn't know, he can't be liable.  A good example here is a couple lives in a home for 10 years, and never gets any water in the basement.  They sell the house, and in the first year, the new owner gets flooded.  The seller can disclose that they "never" had water, because it's the truth.

It doesn't seem to me that your situation meets my understanding of the necessary requirements to have true legal recourse.  I also feel a knowledgeable buyers agent may have spotted the issue and negotiated the drain as part of the purchase.  That would have been the best time to get it done.  New construction presents numerous challenges, yet despite this, most people deal with the builder directly.  That's a problem when things go south.

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Matthew D. Heisler
Heisler & Mattson Properties
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508.925.4626 (o)
617.755.3190 (c)
matt_heisler@heislerandmattson.com
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