Expert: liznarr - 11/27/2009

Question
We closed on our home in September.  After a few weeks in the home, we started to notice things going wrong.  Pool plumbing was leaking, Beams in the garage was unsafe, walls had cracks and leaks, carpet was wet from the walls leaking when it rained.  It is not our 3rd month in the home since closing.  We had contacted the realtor 3 weeks after closing about things that we found that were not disclosed.  He said there is nothing he can do.  I'm just wondering if I should bother getting a lawyer or take the seller to small claims to at least get reimbursed for non disclosed damages.  Seller stayed in the house prior to closing.

Answer
Hi James,

Sorry for the delay in answering your question.  I do not remember seeing your original question come in, but All Experts notified me that yours is unanswered as of yet.

My first question for you is, did you have a home inspection?  If so, did the inspector miss some or all of these items?  If he/she did, the home inspector could have liability for not disclosing anything that a trained professional should have caught.

Second, does your State require mandatory disclosure by a Seller?  If so, was there any mention of the issues you have now uncovered?  If there was no mention of your current issues, you will now somehow need to prove that the Seller WAS aware of the problems.

I would recommend getting estimates from licensed professionals to correct.  If, say, the carpet had been wet prior to your closing due to water intrusion during rains, a professional contractor should be able to pinpoint the source of the water and determine if the entry area is “new” or might have been ongoing for a while.  

I would suspect if this problem were ongoing before your closing, that there would be evidence of mold.  
Did you ever notice the presence of a musty smell in this area that you know now could have been attributable to water intrusion and subsequent mold?

On the beams in your garage that you say are unsafe, if your house is fairly new, you can also check your State’s Code of Laws to see how long a builder has liability for correcting structural issues.  

In an attempt to obtain more information on what your Seller knew, ask some of your neighbors if they have any knowledge of the issues you have uncovered and whether or not they ever noticed workers at the property making repairs.

After you have your estimates to correct, hopefully, along with statements by licensed contractors that the issues probably had manifested more than three months ago, you can send the Seller a letter by certified mail -- with certified copies to agent(s) – and ask that you be reimbursed for the items not disclosed.  I would also send copies to the Broker-in-Charge of the agent(s), because a Broker-in-Charge is responsible and accountable for the actions or inactions of all agents working under him/her.

Last, but not least, did you have a Realtor representing YOU?  Or did you purchase directly from the listing agent of the property?  As far as disclosure, it does not matter whether an agent involved in the transaction represented you.  If an agent knows of any material defects affecting a property that could affect a buying decision, by most State laws, they MUST be disclosed.  By definition, a material defect is one which, if known in advance of a closing, could have affected a decision of whether or not to purchase.  I would ask either or both agents some very pointed questions.  Agents are accountable not only for what we know, but also for what we “should have known.”

As to whether or not you should hire a lawyer or go to small claims court, this decision could hinge on the amount of money it will take to correct these issues.  In the State where I live, we have a Magistrate’s Court system where individuals can be heard (with or without an attorney present) on contested matters up to $7,500.

If your State has such a system and you feel comfortable representing yourself, this is an option for you.  Either way you go, it is always smart to contact a lawyer for legal advice on your options and laws in your State.  Possibly you can find a lawyer who will not charge you for, say, a half hour of consultation.

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

Regards,
Elizabeth