Expert: liznarr - 9/6/2008

Question
We moved in to over house in February 2006.  We went through a realtor and had all of the appropriate paper work.  The house was a foreclosure that was so badly damaged that the man who bought it did so with the purpose of repairing it to sell.  He gutted the whole house, striped the wood siding and replaced it with cement siding, and put on a brand new roof.  It was beautiful.  We had an inspector who we thought found a lot of big issues...dead tree leaning toward house, no hand rails on stairs, broken garage door, windows fogging up...etc.  However, since moving into the house our dishwasher has stopped working (brand new with the house), we found there is no water hook up in the kitchen for an ice machine, the wood ceiling slats are cracking and warping slightly, there is no fan in the master bath and one of the other bathrooms has a fan with no duct attached, it is just dumping the air into the attic, there is water damage in the roof in the attic which is now coming down into the house from where it leaked causing a stain in the ceiling of a spare bedroom, our windows were painted shut and one that wasn't when we opened it the whole window came out of the frame.  There are no cable hook ups in the house when on the contract the owner marked there was...the list goes on and on.  I have sent for a radon test kit because now I don't trust that they did it ever actually did the test even though it is on the contract.  My question is, what are the laws on home buying?  It is apparent now that he used gum to put this house back together and sell it off before it started falling apart; is there anyway to go after him for this?  Especially if the roofer comes in tomorrow and says that a 2 year old roof, that was signed as being in perfect condition by the seller, has to be replace/repaired.  Thanks for any help that you can give us!  Anna

Answer
Hi Anna,

Wow, so sorry to hear of your problems with this house.  I apologize for the delay in responding, but I just took my Mother home from the hospital and was with her day and night for the last week.

The “laws” on home buying are affected by a number of factors:

1.   Your Contract of Sale, which prevails if there is a problem.  Most problems, other than fraudulent issues unknown at closing, should be addressed PRIOR to closing.  However, as in your situation, you apparently did not know of many  problems to even be able to address them.

2.   Disclosures.  Many states now have MANDATORY disclosure laws.  If your state has such a law and you did NOT receive any or all required disclosures, you probably have recourse against both your real estate agent AND the Seller.  If the Seller provided a fraudulent disclosure (intentional misrepresentation), then you would have recourse for such an act.

3.   Home Inspection.  Home inspectors have liability for their inspections if they miss defects that could have been called.  Hopefully, you used a reputable inspector who is both licensed AND insured.  If your inspector missed and/or did not report on defects that could have been caught at the time of his inspection, you should go after both him AND his insurance company.  Many states require inspectors to be licensed and insured.  Call your licensing authorities and do some investigating.

4.   Agent Representation.  Hopefully, you had an agent representing YOU.  We agents are responsible not only for what we know, but also for what we should have known.  Obviously, agents cannot be responsible for areas in which we have no expertise, but if an agent suspects hidden damage, you should have been advised to do further inspections.  Depending on the extent of damage (property and/or personal), there can be severe consequences for agents who do not properly represent a client or otherwise follow real estate laws where they are licensed to sell.

If you dealt with a listing agent only and had no representation, a listing agent STILL has an obligation to disclose all material facts to all interested buyers.  A material fact, simply explained, is one which if known in advance of a purchase, could affect the decision of a purchaser to buy.

On the radon issue, before you spend time and money doing your own testing, ask in writing for a copy of the radon report you were told that was done.  You are entitled to this and SHOULD HAVE BEEN PROVIDED A COPY prior to closing.  If you are not provided a copy, this will establish a paper trail you may need later if you decide to take legal action.

For your dishwasher problem, if it was new when the house was purchased, there should be at least a one-year manufacturer’s warranty.  You can search online for your model and brand and find out yourself what the warranty is.  Ask the Seller for a copy of his purchase documentation for the dishwasher, and then call the selling vendor and inquire about getting the dishwasher serviced/replaced.

The issues that the home inspector revealed which you referred to as big issues –  “…dead tree leaning toward house, no hand rails on stairs, broken garage door, windows fogging up…” –  are issues which any observant real estate agent representing you could have (and should have) pointed out to you, ESPECIALLY an agent selling a foreclosed property that had been renovated.

Unless your home inspector had a disclaimer on some or all of the items below which you agreed to when you used him/her, a good home inspector should have had no problem disclosing some of the other problems you have now discovered:

1.   Water damage in the roof in the attic.  (Did your inspector even go into the attic?)

2.   Windows painted shut; and one that wasn't which came entirely out of the frame when opened.  

Home inspectors that I use ALWAYS report on window issues.  And they attempt to open and close ALL windows in a house.  Many Counties have ordinances that REQUIRE at least one window in all rooms to be operable as an escape route in the event of a fire, especially bedrooms.  Check this out with your local authorities.

3.   Possible Roof Replacement.  A reportedly two-year-old roof (unless there had been some severe hail or other damage) should never have to be replaced.  What did your home inspector report about the roof?  And have you had any possibly damaging wind and/or hail damage AFTER your purchase?  Ask the Seller for a copy of his purchase documentation of the shingles and determine what the warranty is.  If you know the brand, again, you can go online and find out what the warranty is.

When your roofer comes in to assess damage, if the roof needs replacing or major repair, be sure and get his proposal in writing.  Ditto for any other contractors you bring to your property to assess damage.
 
For the issue of no water hook up in the kitchen for an ice machine, unless it was disclosed that there was one, you would have no recourse for this unless there is some Code requirement for same in your area.

Wood ceiling slats which are cracking and warping slightly should have been reported on by the home inspector.  You paid him for his expertise.  I’m being facetious now, but surely your inspector was not blind.

For no fan in the master bath and one of the other bathrooms having a fan with no duct attached and dumping the air into the attic, unless there is a Code requirement addressing this or a disclosure that they were in place, I would guess you have no recourse on these.

As you have found out the hard way, you are dealing with much bigger and more costly issues now after having closed on the property, and I don’t blame you one bit for being hot under the collar.  It’s not my home, but I am also highly perturbed to hear of your dilemma.

Another avenue you might travel is to see if all the work done by the Seller was permitted by your local building inspections office.  You can ask for a copy of not only the permit, but also any inspections that were done by the authorities.  Secondly, in whose name was the permit issued, and was all work done by licensed contractors?  If the Seller personally did any work himself, was he required to be licensed?  Also, make sure that all work done was to Code.

Last, but not least, if after doing your own investigation of all the above and anything else you can think of, if you feel you have grounds to go after any or all persons connected with your sale, I highly recommend seeking competent legal advice.  

You have already been taken advantage of by others, so please investigate any attorney you might choose to use and make sure he/she is ethical.  A good TRIAL attorney, rather than one who sits behind a desk and pushes paper all day long, would be a good choice for you.

Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth