Expert: liznarr - 10/24/2006

Question
Hi Liznarr,

I have a situation whereby I purchased a home that I had not used much until I rented it recently and now that it is rented, I have a problem with strong sewage smell from time to time in the upstairs bathroom.

Investigation so far indicated a flaw in the remodel (prior to my purchase) whereby the upstairs bathroom does not have any waste or drain pipe vent to the roof. Although the downstairs bathrooms do have proper venting, we suspect the upstairs pressure build up of gases will sometimes escape through the upstairs p-traps, resulting in this odor.

I guess my home inspector should have caught this on initial inspection, since it would seem obvious that a waste/drain pipe vent is required (and I would expect a code violation if not there).

However, my main question is to undertand if this is something I should now ask the original seller to compensate me for, even though it's over a year since I purchased the home.

I also did never check that the remodel was fully permitted, even though the purchase contract was based on this condition. Based on this problem, I now suspect the previous owner never did complete a final inspection with the building inspector. Do I have any grounds to hold the seller responsible for any repairs to get full permits, or am I on my own at this stage?

Thanks,
Peter

Answer
Hi Peter,

Not having seen your Contract and having the benefit of additional facts, I believe you are in somewhat of a gray area depending on several factors, including language in your Contract of Sale.

Generally, if you have a home inspection, this takes responsibility off the Seller UNLESS there was a fraudulent disclosure about something.  In other words,  (1) If there was any relative place at all on the disclosure form used in your state to disclose the fact that there was no vent pipe in the upstairs bathroom, and (2) The Seller knew there was no vent pipe in this bathroom and did not disclose this, then he would be guilty of fraud (intentional misrepresentation); and you would have recourse against him.

If the Seller had no knowledge that there was no vent pipe, then he could not have disclosed what he did not know.

If, however, the original Seller (1) Did the remodeling, (2) did not have the proper permitting and/or final inspection by proper authorities, and (3) he represented to you that the remodeling was inspected when it was not, he would be guilty, again, of fraud.

Since your home inspector missed this, I would think this would be the logical place for you to start by notifying him what you have now discovered and ask the INSPECTOR to correct this problem for you at his expense since he obviously missed it.  A licensed, reputable inspector should carry Errors and Omissions insurance to cover such events.

Also check your Contract to see if it has any language in it stating that the house must meet current code requirements at time of purchase.

You say your Contract was based on the fact that ‘…the remodel was fully permitted…,’ but whose responsibility was it per the Contract to provide proof that it was fully permitted?  

If the burden was on you, and by virtue of the fact that you put this stipulation into the Contract and did not verify this and subsequently closed on the property, I hope you have not waived your right to pursue the Seller if you now discover that it was not permitted.  This is a legal question that you should consult an attorney on for advice.

If the home inspector will agree to have this corrected for you, you will have solved your problem.  If he does not voluntarily agree, you might have recourse against him.  Again, an attorney would need to be consulted for advice on how to proceed at that point.

As to whether or not you have any grounds to hold the seller responsible, you would have to verify some facts above and then ask an attorney for legal advice – which I am not qualified to give.

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

Regards,
Elizabeth