Expert: liznarr - 1/5/2009

Question
We recently purchased a home that needed the chimney rebuilt.  In the signed seller's agreement the seller of the home agreed to "... have a licensed contractor remove/repair the deteriorated masonry in the chimney."  The contractor the seller hired did an awful job and left us with a mess, we had to have the chimney completely rebuilt on our own tab to prevent further damage to our home - only 3 months after buying the house.  We have a warranty written out to us from the contractor that he would be responsible for any repairs for a period of ten years, we tried to get him to uphold this warranty before having another company rebuild it but had no luck - We are taking this contractor to small claims court.  I know I have a case against the contractor; however, a lawyer (I had a free consultation with but will have to pay more if I call back) advised me to sue the seller as well.  This made sense to me because I did not hire the contractor, the seller did and the seller did not "have a licensed contractor repair the chimney," we now know that the contractor that the seller hired was not licensed, and he definitely did not repair the chimney.  It seems to me that the seller did not hold up his end of the deal because he hired the cheapest contractor he could find and then left us to deal with him, he did not have a contractor do the work he paid him money and left us to make sure it got done, which it didn't.
As I said, this made sense to me; however, my real estate agent has said that she does not think I should sue the seller and his agent has sent me a letter pretty much informing me that I cannot sue the seller, her client, once the terms of the sale have been agreed to.  This makes no sense to me because I have no problem with the terms of the sale, my problem is that the terms of the sale were not upheld.  My chimney was not repaired by the contractor he hired!  
I have sent the seller two certified letters, the first informing him of the problems we have had, our intent to take him to court if he is not willing to pay half of the cost to rebuild, estimates for the re-build, and professional opinions of the poor workmanship from the contractor he hired.  The second letter informs him again what we will settle for outside of court and the date we will file the claim if not settled.
I would appreciate your opinion on the matter, am I and the lawyer correct or are the real estate agents correct.  We are first time home buyers and this is all overwhelming!

Answer
Hi Brenna,

I apologize for the delay in responding.  A close family member has been in the hospital, and I’m behind on everything.

I would suggest taking the advice the attorney gave you and sue the Seller.  You had a Contract with the Seller, and the Seller does have an obligation to fulfill that Contract.  

Based on an assumption that you were in a Buyer Agency Agreement with “your” agent and she was representing you and received a fee for her involvement, I submit the following for your consideration:

Ask your attorney if he agrees that your agent (or possibly both) should also be made a party to any litigation.  I am severely disappointed that apparently YOUR agent is not trying to help you, but rather only telling you she does not think you should sue the Seller.  Of course she doesn’t want you to sue the Seller, because she knows she will probably be pulled into your situation, as well she should be.  

Assuming you were in a Buyer Agency agreement with your agent, she had an Agency obligation by law to represent YOU, and she failed miserably by obviously not having you reinspect the repairs prior to closing.  She also failed miserably, again, by not having verified for you, PRIOR to closing, that the contractor doing the chimney work was, in fact, licensed.

Even if you did not have a signed Buyer Agency Agreement with your agent, by the mere fact that you believe she was “YOUR” agent, and in the absence of a Buyer Agency Agreement, it is obvious that you did not receive the proper Agency explanations from her.

If the repair in question were a leaking faucet due to a worn out washer seal, the urgency to verify the license status and reinspect the work would not have been as great … because the cost to replace a worn out washer would have been minor.

Also, the Seller’s agent, in properly representing the Seller, should have verified for the Seller whether or not the contractor was, in fact, licensed and then passed this information on to YOUR agent.  The Seller’s agent also failed; but your agent, in my opinion, however, shares a greater portion of the blame because she apparently received a fee for representing YOU and DID NOT.

Even if your agent did not verify the license status of the contractor, he/she should have advised you to have the repairs inspected by another professional before accepting the work as good.  You did not say whether or not you had a home inspection, but someone discovered this problem; and I am assuming it could have been a home inspector.  If so, the home inspector would have been a great resource to reinspect the repairs.

One final suggestion before you resort to litigation:  You might contact the Broker-in-Charge of your agent and suggest that his/her Company pay for the repairs since they failed to properly represent you.  Other options you have are to file a formal complaint against your agent with your state’s Real Estate Commission and/or file a grievance against her if she is a member of a Realtor Board.  Just make sure you have all your documents and “evidence” in order before proceeding with litigation or either of the preceding.  

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

Regards,
Elizabeth