Expert: liznarr - 1/28/2010

Question
Hi,

My wife and I recently purchased a home 2 months ago, and it seems that the seller(Orignals owners for 42 years) did not disclose that the more than a 1/3 of my 125x100 backyard turns in a lake when it rains.  Two days ago, we got rain and I had major flooding in the back.  I have spoken to my next door neighbor who has lived there for 5+ years, and he said it has always been a problem.  He went on to tell me that he did speak to the old owners about going in with him on some drainiage but they did not want to spend the money.  Now on the disclosure they did put the basement was waterproof but most likely intendally did not want to put the backyard.  What kind of recourse do I have?  I am starting to have people come out to get some pricing on solutions but I have gotten quotes from 8k-20k.  Please advise

Answer
Hi Andrew,

The hair on my neck literally stands up when I hear stories like this, and I’ll bet yours is, too.

Try to get a written, notarized statement from your next-door neighbor about the major flooding, and the fact that he tried to get the former owner to participate in some drainage work to alleviate the problem.  Take plenty of pictures of the condition (if you haven’t already) during the next heavy rain.

If you want to try and resolve the issue prior to paying any legal fees to an attorney, I would send this former owner a CERTIFIED LETTER (mail receipt requested) and enclose (1) Your estimates, (2) A copy of the written statement from your neighbor, (3) A copy of the disclosure form where this condition was NOT disclosed,  and (4) Pictures of the flooding.

Give him “X” number of days to respond and pay-up, so to speak.  Advise him in your letter if he does not agree to correct what he failed to disclose that you will take advantage of any legal remedies available to you by law and ask him to pay your Court costs.

Since this former owner did not disclose this condition, he does not sound like the type person who is going to step up to the plate now and willingly do the right thing.  At this point, I would strongly suggest contacting a reputable attorney or investigating the option of either Magistrate’s Court or a Small Claims Court in your area to pursue the matter on your own (so long as the amount being sued for does not exceed any “limit” in Magistrate’s or Small Claims Court).  In my area, a Magistrate can handle any disputes involving money that do not exceed $7,500.00, not including attorney’s fees.  

You can ask an attorney or Judge if you can pursue the matter on the basis of fraud (intentional misrepresentation).  Your homework will have already been done by having in hand at this point in time a notarized statement from your neighbor, copies of disclosure form, and photos.

If there were any real estate agents involved in the transaction, copy them on the letter – and also their Broker-in-Charge (BIC).  The BIC is responsible and liable for all actions/inactions of any agent working under him/her.

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

Regards,
Elizabeth