Expert: liznarr - 7/26/2009

Question
I just bought a house on Juen 23rd. Now the back yard has bad odor smell which comes from the soil. If you walk in the back yard, the smell sticks to your shoes or whatever touchs the soil, when you go to other places, the smell won't go away until couple days later or you have to wash shoes by soap 2-3 times to get rid of it.
We asked the smell during transactions couple times and seller said she cooked or threw fish remains to trash can or defrosted fish at backyard. All these were verbals over the phones (seller told her agent, her agent told my agent, my agent told me.) My agent did write the notes of smell inquiry of us and what reply back from seller. Then, the escrow closed and seller moved away. Now the backyard has terrible odor as described above. We had agent called seller's agent and seller denied everything about smell.
I had 2 contractors came to examine the back yard and they both said that the seller built a storage room without permit. She had a water sink there and the sewer went into a hole underground. Whatever she washed went into the hole underground and probably spread into the backyard which cause the moss and bad smell odor in the backyard. I checked disclosure packages that she disclosed as below: storage room built with no permit. complete time: unknown. And she disclosed "water pipe not approved by county". She didn't mention sewer at all. But per your professional advice, if the storage room without permit and she disclose that, will it cover for the sewer doesn't follow health code? We bought "as is" condition but we didn't know this issue at that time and seller didn't disclose. What will you recommend us to do or what evidence we shall collect to proceed toward next step against the seller?
If we sue seller on "she doesn't disclose", will we win? What will you recommend?


Answer
Hi Julie,

Sorry to hear about your problems with the back yard smell and sewer.

My first question is, did you have a home inspection performed?  I understand that you purchased “as-is,” but you still should have been entitled to an inspection.  If you did have an inspection done, is there any mention of sewer problems?  If not, I would call the inspector and ask some pointed questions.  If the smell is as bad as you say, it’s very possible he did notice the smell but did not report it.

You mentioned that the Seller did disclose “some” things which were not approved by the County and that there was some construction with no permits.  If your state requires disclosure, and there was any appropriate place on the disclosure form to disclose a sewer problem; the Seller should have disclosed this.  Given the other information about the Seller you provided, I’m not surprised that she did not … and now also has a memory problem.  

If the Seller KNEW and did NOT disclose, she committed fraud (intentional misrepresentation).  You would, however, have to prove that the Seller (and possibly her agent, also) knew about the problem and did not disclose.

If you purchased as-is and had the right to do a home inspection, you would need to check with a good attorney to see where you stand on that issue.  

Given that your agent has written notes, I would get a copy of those notes from her, along with a signed statement that they are her notes, and that they are accurate.  I would also ask neighbors what, if anything, they know about the sewer problem, and whether or not they ever noticed the smell.

I would suggest getting estimates to correct the problem, and then taking all your documentation to an attorney and seeking legal advice.  You will have to determine if the cost to correct exceeds any legal expenses you might incur and also if an attorney thinks your evidence is strong enough to expect a “win” for you.

If you bring an action against the Seller (and possibly her agent) for fraud, there is no way to tell whether or not you will win.  Either a Small Claims Court Judge and/or jury would have to make a determination based on the evidence you present.

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

Regards,
Elizabeth