Expert: Russel Ray - 12/14/2007

Question
Hi Russell. Within the past year we bought a house in Arizona (AZ does have a mandatory disclosure law). In the SPDS the seller noted that they had roof repairs done due to wind damaged tile but no mention of leaks. After having lived in the house for a few months we noticed that there were patches in the ceiling in one area of the house. We also talked to a neighbor who told us that the previous owner had a major leak and had to have the interior repaired because of it. We recently had heavy rains and we now have several water stains on the ceiling. We did have an inspection and the inspector indicated that there were several cracked tiles that needed replaced and the roof itself would need replaced within the next ten years. We requested on our off that the seller make the repairs and they refused. At no time did they state that there were known major leaks in the roof. DO we legally have a leg to stand on to force the seller to make repairs? If so, how do we start?

Thanks for any help

Paul

Answer
Hey, Paul.

I always hate hearsay from neighbors because you don't know what kind of a relationship the two neighbors had. Barking dog? One child bullied the other child. Etc., etc., etc. So I wouldn't really put too much stock in the story of the neighbors unless you can get, say, 10-15 neighbors to say the same thing. Then it might be a different story.

So, for the moment, let's discount the neighbor's story.

Patches in the ceiling can result from many things. For example, I got angry at an easy pool shot I missed one time and I stuck that pool stick straight through the ceiling. One would think that it would be an easy fix, but I think the smaller the hole, the bigger the mess. I also did a home inspection a couple of weeks ago where there were four patches in the ceiling. Based on my past renovation business, I guessed that the sellers had problems locating the new ceiling fan in the proper spot to provide air flow and lighting just the way they wanted. Turns out I was right.

So let's discount for the moment the patches being from previous leaks.

Let's look at the house now. Arizona's weather is very similar to the weather we have here in San Diego: very dry for, say 11 months, and then a month of rains. It's those 11 months of dryness that typically create the problem because the wood dries and shrinks, as does the sealant and the flashing. So in our areas roofs tend to leak when the rain comes. That's the price we pay for living in sunshine for 11 months.

What's more significant to me, though, is that you have cracked tiles. I don't know what kind of inspector you had, but I can't imagine either a home inspector or a roofing contractor stating that "the roof itself would need to be replaced within the next ten years." They simply are not willing to take that kind of liability, and neither am I.

Given proper ventilation in the attic and annual maintenance to check on problems resulting from the dryness, a tile roof can last 50-75 years or longer.

It's been my experience in the Southwest that many roof repairs cause more damage than they repair, especially if it's a new roofing employee who doesn't yet know how to walk on tile. The tile is simply the first line of defense against leaks, but it's the most important one. Cracked tiles can damage the underlayment, the tar paper or roof felt, and that's where the leak is going to occur. If the tar paper was damaged when the roof was installed, it's possible for water to leak under the cracked tiles and then flow further down the roof on the tar paper to the point where it was damaged during installation. These are just some of the reasons why good roofing contractors hate to repair tile roofs, or they charge a lot more for the repair so that they can get additional insurance on their work.

You probably do have a leg to stand on legally, but it's very difficult to prove what the seller did and did not know, and did or did not do, especially if they were there only a short length of time, like 2-4 years, and the house is much older. The patches might have been done before they moved in.

The problem with disclosure forms is that once people have lived in a place for a period of time, what are problems or defects to others are merely commonplace to them, so they forget to put them on the disclosure.

In reading through your missive again, I'm thinking that you had a home inspection because you state that you asked the seller to repair the cracked tiles. Right?

So depending on how much the repairs might be would probably determine if you wanted to force the issue in a legal sense with the seller. If you decide to do that, remember to determine a value for your time. That's something that many people forget. What I mean is that if the repairs are going to cost, say, $5,000, and the attorney requires a $5,000 retainer, and the attorney estimates that you will have to complete this form and that form and take off a day from work here and a day there, it can add up significantly in terms of the value you place on your time. I value all my time, 24 hours a day, 7 days a week, at $100 per hour. So if I'm out $500 from the seller's lack of disclosure, but it's going to take me 8 hours to compose my complaint, consult with an attorney a couple of times, lose a day of vacation or sick leave, or whatever, then I'm just going to eat the $500 and move on to do things that can make up financially for my loss. I hope that makes sense.

Here's a couple of documents that I provide to my property consulting Clients that might help you understand roofs in our Southwestern climate:

http://www.abouthomes.info/reports/Understanding%20your%20roof.pdf
http://www.abouthomes.info/reports/Roof.pdf

If you decide to move forward legally, make sure you get the best attorney who specializes in real estate law.

Feel free to contact me if I can continue to help.