Expert: liznarr - 10/15/2005

Question
My fiance purchased a home with the assistance of a large Real Estate company here in Iowa. He had the home inspected by an Inspector recommended by the real estate company. The report stated that there was a window that needed to be replaced and that the window sills were "dirty" and he recommended a thorough cleaning. The home owner revealed in the disclosure statement that they had replaced one window upstairs because it had "blown off in a storm". Other than that, the home was OK. After moving in, I was cleaning the windows and a window just fell off as I opened it. The wood was totally rotten under the aluminum outside. This window was not one that was on the list to be replaced! We had the Window people come out to inspect the rest of the windows and found that 15 windows were rotted and needed to be replaced. Do we have any recourse against the previous owner or the inspector? When we called the inspector to let him know of this, he said there was nothing he could do and he did not have insurance to cover this.

Also....just to add fuel to an already hot fire..in the purchase agreement the seller had a hot tub in a sun room and asked to leave it there until they closed on their home or until Sept 30, whichever came first. On Oct 1st we called the seller and asked him to remove it. It has been 3 weeks now and the hot tub remains. Any ideas?

Much thanks for your service.
Cathy"


Answer
Hi Cathy,

Sorry to hear about your experience.  What a shock to find that you have 15 windows rotted.

Without having seen your inspection report, I can only give you general comments and ask you some pointed questions.  Keep in mind that I am not qualified to give legal advice; you should consult with an attorney for legal questions.  My suggestions below are based on custom and experience in the area that I live and work.

What alerted the inspector to say that one window needed to be replaced?  Was it anything that should have made him suspicious enough to check further on all other windows?   Could the “dirt” the inspector referred to in his report have been mold (caused by water infiltration to the window)?  

Generally, inspectors in my area would not write into a report that something was “dirty.”  Inspectors do not look for “dirty” areas, but rather focus mainly on structural problems – problems that a lay person would not be able to see or detect -- or some condition existing for which a lay person would otherwise have no reason to suspect that there might be an underlying or bigger problem.

I checked the following site http://www.home-inspect.com/legislation.asp and found that home inspectors in Iowa are not required to be licensed at this time.

You said that you were represented by a large insurance company that recommended this inspector.  Agents are advised NOT to recommend, but rather give a buyer several different inspectors from which to choose and make their own decision.  This way, if there is a problem, the buyer (you in this case) would have made the selection and cannot point a finger at the agent or real estate company.

If your agent did, in fact, recommend only one inspector that you used and who missed the other 15 windows, you might try writing the Broker in Charge of the Company.  Send the letter by Certified Mail and request a return receipt to make a bold statement.  Include a copy of your inspection report, along with your estimate to replace the additional 15 windows, and explain that his agent recommended the inspector who missed the 15 windows.  Request that his company pay to have your windows replaced.  You could also make the same demand of the home inspector.

By making a demand yourself against the Broker in Charge (who is responsible for all actions of all agents licensed under him/her), you might convince him to replace your windows and avoid costly legal fees and/or litigation.  I can tell you that real estate companies do NOT like bad publicity, and a legal action (if you have legal grounds)  would definitely be bad publicity.  

If the broker balks (and he probably will), inform him that you plan to take advantage of any remedies available to you by law; and that you will also be filing a complaint with the Iowa Real Estate Commission for recommending a single inspector who missed a major item in your home.  

Whether or not you follow through with what you have advised the broker and actually take legal action is up to you.  You have done nothing illegal or unethical at this point;  you have simply stated that you will take advantage of any remedies available to you by law.  Besides, a good bluff will many times yield the result you are seeking if you present it in a convincing manner.

After any refusal by the Broker and/or home inspector, you may want to talk with a good, reputable attorney and see if he/she thinks you would have a good case against the real estate company.  As information, generally when there is a legal action such as this, an attorney might file against not only the real estate company, but also the agent personally, in addition to the home inspector.

An idea for the former seller who left his hot tub at your property with a legal deadline to remove it by September 30:  Write the Seller (again, Certified Mail) and inform him that you are charging him $______ daily beginning October 1 for storage.  If you want, also make your demand that he remove it by a certain date, and that the storage charges will increase to $______ daily after the removal date (if not removed).  

After your deadline date for removal has passed and if the hot tub has not been removed at that time, you probably need to consult with an attorney to see exactly what you need to do at that point.  I don't know if Iowa uses a magistrate system whereby a person can take someone to court without an attorney (usually up to a certain dollar amount), but if Iowa does have such a system; contact a magistrate before you write any letter to the former Seller and ask specifically what your legal options are.

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

Regards,
Liz Narr