Expert: liznarr - 12/22/2009

Question
My mother and i went through the process of buying a home here in Florida. We did all our inspections and home work. It was brought to our attention that certain things were done but done half-assed. Also,during the inspection, the septic tank wasn't failed but it was brought to our attention that it MIGHT have some issues. We brought the issue to the seller and they said that there was no problems with the septic system and that it was fine. Other isseues were repaired. It was told to us that THEY had also done an inspection and it was passed. Now that we are in the home, the septic system is a constant problem. We have only been here for barely 90 day! What actions can we take to resolve the issue??? PLEASE HELP!

Answer
Hi Jermyles,

Sorry you are experiencing problems.  

Not having seen your Contract of Sale or any of your inspection reports, I am giving you general answers that I think could apply to your situation.

Kudos to you for having had an inspection done prior to purchasing.  However, when a home inspector calls attention to an issue which “might” be a problem, it is Purchaser’s obligation (at least with Contracts I am familiar with) to then call in another expert--septic expert in your situation--to determine if there actually is a problem.  You would then present your written documentation of a defect to the Seller and ask for correction.

In other words, the burden of first revealing and documenting ACTUAL defects and then asking for repairs/corrections is totally on the Purchaser.  When a home inspector suggests that there “could be” a problem in an area, this simply means that the home inspector is not an expert in that field and he is, in so many words, recommending additional inspection of a specific area by a licensed contractor who specializes in whatever was disclosed.  

Unfortunately, most people who are not versed with home inspection issues can easily be duped mid-way through the process by an unethical Seller who might know of defects, but not give full and honest disclosure; and it sounds like this is what could have happened in your situation.

The lesson to be learned here is that a Purchaser should NEVER, EVER take a Seller’s verbal communication that something is okay or has passed.  Documentation should always be in writing.

If you did not request a copy of the Sellers “passed” report previously, you should ask for it ASAP now.  Hopefully, if the Seller will produce it and the inspector was licensed and bonded.

What I would suggest now is that you have a reputable, licensed company inspect your septic system.  Give them a copy of your original inspection that brought attention to the issue, and ask that they provide you a written report detailing any defects with your septic system, along with an estimate to correct.  Ask, also, if they can determine how long this condition might have existed.  If they believe it is an ongoing issue that probably was in existence at the time of your purchase, request that they state this in their report.  If they believe it existed prior to your purchase and put that fact in writing, this is the first step in proving that the Seller could have misrepresented the true condition of the septic system to you.

Next, if the Seller’s inspection report that “passed” differs from yours, you will somehow have to reconcile the two contractors – if this is possible.

The burden of proving that Seller knew of the condition and did not give you full disclosure is now on your shoulders.  I would also ask neighbors what they might know, and if they ever saw any septic companies working at the property.

If after presenting your estimate to correct to the former purchasers, they will not do the right thing; you should contact an attorney for legal advice.  If the cost to pursue the Sellers is more than the cost of repairs, this is a factor you might need to consider because there is no guarantee in the legal system that you will prevail.

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

Regards,
Elizabeth