Expert: liznarr - 6/13/2008

Question
QUESTION: We bought a home privately a year ago.  We did not realize we were supposed to get a disclosure statement, and we did not.  There was a little water in the basement, but the gentleman we purchased from said it was the first time he had water coming in there.  He said there had been water in the now-finished area but after he had fixed the eaves he had no problems, and that was when he went ahead and finished it.

Since we moved in we have had water in almost every area of the basement on several occasions.  We had to rip out the bathroom flooring completely and luckily have not had it put back down yet, as we have water in there again.  We had the carpeted half cleaned up by professionals and dried with large fans, and they put fans in the back half as well, where they also found mold on some of the walls that had been there for quite some time.  Right now water just keeps seeping up through all the cracks in the basement floor.

What I want to know is if we have any recourse for this having not gotten a disclosure statement, and having not asked for one.  We are going to have to do something with the basement, although I don't now what, and I have no idea what the costs will be - but this is a ridiculous way to live.

Thank you VERY much.

ANSWER: Hi BJ,

Disclosure problems are becoming one of the worst type purchasing problems, and I am truly sorry to hear of your experience.

First I would ask you, is a seller property disclosure form mandatory in your state?  If so, hopefully the requirement of a Seller will be the same as it is in my state:  Sellers are supposed to be aware of this and disclose IN WRITING, whether they use the services of an agent or sell on their own.

If no Realtor was involved; the Seller did not provide a mandatory disclosure to you; and you were not aware that you should have been provided one; whatever recourse you have would be a question that should be directed to an attorney in your area.  

You did not mention whether or not you used the services of a Realtor, only that you purchased a home “privately,” so I am not going to assume that you did or did not use a Realtor.  If a Realtor was involved (representing either party), the Realtor should have seen to it that both parties received AND signed a disclosure form.  If the Realtor did not, he has definite liability here in my opinion.

If there was NO Realtor involved, you can try contacting the former owner informing him of your problems and ask that he correct and pay for repairs.  You’ll need to have estimate(s) in hand in order to quote repair amounts.

Whether a Realtor was involved or not, did you have a home inspection performed on the property?  If one was, was there any mention of anything related to this problem?  If not and there was any obvious “sign” of this type problem that a trained inspector should have reported on, the home inspector could have some liability.  This is purely conjecture on my part, but I’m just trying to point out things which you need to be thinking about.

If the former owner and/or any Realtor involved in your transaction refuse to accept any responsibility for payment for repairs, I would then recommend speaking with an attorney to find out what the Notice period is and have the attorney write a letter for you making a demand for payment of repairs.  

By having the attorney write the letter, you will be assured that you comply with any Notice periods and any other legal requirements as a precursor to possibly filing an action against the former owner and/or any involved Realtor if an attorney thinks you have a strong case.

I would think that for about $150 or so, you could get an attorney to write a letter for you.  If the former owner caves in and agrees to pay, that would be great.  However, if the former Seller knew of this problem, disclosed only a portion of it to you, made a band-aid repair, possibly knowing there might be mold, I would not expect this type person to do the right thing at this point.

If the mold the professional cleaners you hired found mold that had been there “some time,” would this time period cover PRIOR to your purchase?  If they did not specify, ask the pointed question and ask for that opinion in writing if they believe it was in existence before your purchase date.

I hope the above is helpful to you.  Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth

---------- FOLLOW-UP ----------

QUESTION: Elizabeth,

A few answers for you:

Yes, a property disclosure form is mandatory in our state.

There was no realtor involved.

We did not have a home inspection done.

The mold was definitely there well before our purchase. (The gentleman was living here when we looked at the house, and one area had things stacked in front of it - not intentionally, he just had quite a bit of stuff down there.)

It sounds to me like we should have definitely had a home inspection done (what were we thinking other than we love this house?).  The one problem leak in the basement that we were told had never happened before, happens all the time.  The water is starting to clear up and is not seeping up the cracks anymore; however, that "problem area" since we had another good drenching has picked back up again.  Which makes me believe that was NOT the first time he had water coming in there.  I have a hard time believing he didn't have water coming in other areas as well.

We have thought about speaking with an attorney.  I do not know if there is a time limit from when you purchase the property to when you can file any claims, but that would be a good thing to find out... and soon!

Thank you!  I appreciate your input!

BJ

Answer
Hi BJ,

An attorney in your area can tell you if there is an Statute of Limitations in your State for this type problem.

Since you are just now coming to terms with what is REALLY going on, I would suggest consulting with an attorney.  If there is a Statute of Limitations on this issue, some statutes define the period in which you can bring an action as “x” number of days after you became aware of the problem.

As you said, and I agree totally with you, “I have a hard time believing he didn’t have water coming in other areas as well.”

An attorney can also advise you on the disclosure issue.  If it’s mandatory in your State, there’s no way around this for the former Seller if he did not disclose in writing as required by statute.  He broke the law, and you have damages which I think this former Seller should be held accountable for.

I would most certainly hope that you pursue this matter, especially in view of the mold issue that you seem to be able to document as being there PRIOR to your purchase.  It really bothers me when innocent persons are taken advantage of.  And now you know to never purchase any property ever again without the benefit of a home inspection by a reputable, qualified home inspector.

Good luck to you, and thanks for the follow-up.

Regards,
Elizabeth