Expert: liznarr - 11/26/2007

Question
dislosure listed water leakage in basement with heavy rain, seller stated had waterproofed.  After 1st rain/freeze water is seeping in and frost has formed on inside of wall where water comes in.  Also, the bathroom plumbing is leaking and mold has formed on wood and will need floor ripped up to be fixed.  Anything I can do legally?  Just bought 28 days ago

Answer
Hi Morgan,

Sorry to hear that you have had a problem with water leakage.  Without having seen your Contract of Sale, I can only offer general suggestions that may or may not be of help to you.

I would suggest contacting the Seller immediately (or his agent), asking for written documentation of who did the waterproofing.  If you had an agent representing you, request your agent to do this for you – in writing.  Hopefully, the Seller had the waterproofing done professionally, and there will be some warranty attached with the work.

In retrospect, this type documentation should have been provided to you at closing.  If it was not, all you can do is go forward now with what you have.

If the Seller says he did the waterproofing himself, try to convince him that it was not done properly and that you have no choice but to ask him to pay for the recent damage after closing since his repair obviously failed.

If you and the Seller cannot reach an agreement, then you probably need to speak with a good attorney and get legal advice (again, subject to any limiting language in your Contract of Sale).  Depending on the amount of your damages and what legal fees would cost, you can make your decision as to whether or not your damages warrant paying legal fees.

Another alternative if you and the Seller cannot reach an agreement is either a local Magistrate’s Court (or Small Claims Court in some areas.  I am repeating again here, but future legal action could be subject to any limiting language in your Contract of Sale.  

In Magistrate or Small Claims Court you can represent yourself and NOT pay an attorney to represent you, up to a dollar limit of “X” for damages (which can be different for different areas and/or counties).  You present your own evidence to a Magistrate/Judge in this type proceeding, and the Magistrate/Judge will render a decision.  In many areas, you can also request a jury trial for these type proceedings.

Until you decide which route is the most feasible for you to take, be sure to take pictures of your damage as documentation of your case and make notes of who said “what and when.”  If you do go the legal route, you will be thankful you did this, as memories tend to fade with time.

You didn’t say whether or not you had a home inspection done.  If you did, a good inspector would have disclosed the presence of a plumbing leak in the bathroom.  Inspectors look not only for active leaks, but also EVIDENCE of previous leaks.  Of course, it’s always possible that this leak originated after closing, in which case you would have no recourse unless you could prove this same area had leaked previously and was not repaired and/or disclosed, or not properly repaired and/or disclosed.

As you are learning, disclosure by a seller is only the first step.  In any future purchases, if there is a problem disclosed that has been repaired, you should require documentation of the repair.  This way, you know who made the repair and if there is any warranty connected to the repair.

And if you ever request a Seller to make repairs, always stipulate that the Seller have a licensed contractor make the repair.  Otherwise, you may be left standing and wondering … what happened.

I hope you are able to get your situation resolved without a lot of conflict.  Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth