close

Privacy guaranteed - Your email is not shared with anyone.

Real Estate Litigation - Seller's Failure to Disclose

Discussion in 'The Okie Corral' started by Mr. Niceguy, Nov 12, 2012.

  1. Mr. Niceguy

    Mr. Niceguy Senior Member

    Joined:
    Apr 7, 2005
    Messages:
    777
    Likes Received:
    27
    Anyone ever sued a seller for failure to disclose material defects?

    I recently discovered that a corner of our home has settled, creating stairstep cracks in the mortar joints in the brick. Upon examination, it is obvious that previous settling had occurred, and that the same joints were simply re-mortared, leaving the mortar gaps much wider than the other surrounding joints (about 1 inch, versus 1/4 inch). Further evidence of a previous patch job is shown by the fact that the mortar in the cracked joint is a different color/shade than the rest of the house, and that it was applied somewhat sloppily. There is a finished basement, but I have not yet removed any sheetrock in search of foundation cracking, which I am certain exists below the exterior cracks.

    I've researched and am aware the repair proce$$, but would like to hear your experiences if you've ever been in this situation. FYI, we've owned the home for two years. The house is 40 years old, and the previous owners were there for 30 years. I have an appointment with a structural engineer, and have a couple of foundation repair companies on stand-by. I have also had an initial consultation with a real estate attorney. Thank you!
     
  2. Adjuster

    Adjuster

    Joined:
    Feb 8, 2006
    Messages:
    15,231
    Likes Received:
    2,675
    Location:
    Port Richey Florida USA
    Did you have the house inspected that is normally required by law as part of the purchase/sale and if not required is adamantly recommended? At this point do you know if the cracks are structural and will continue to worsen or are they cosmetic? Are you getting any water penetration? There is always going to be an allowable amount of cracking/settling in a house foundation.



    /
     

  3. Mr. Niceguy

    Mr. Niceguy Senior Member

    Joined:
    Apr 7, 2005
    Messages:
    777
    Likes Received:
    27
    We did have an inspection, and the previous settling was not noticed at the time. The cracks are underneath a bedroom window that is about three feet off the ground, and behind some tall bushes. There is about 2 to 2.5 feet of space between the bushes and the house, so it's pretty easy to access. Because of the somewhat tight quarters, it's difficult to notice the previous patch job unless you are crouching down at that level. There is no water penetration that we know of. We expect that the problem lies in the foundation itself, as well as the brick, but will know more once the structural engineer has inspected.
     
  4. Berto

    Berto woo woo

    Joined:
    Sep 15, 2003
    Messages:
    25,468
    Likes Received:
    4,399
    Location:
    WA
    As part of a Condo Association, we had to sue the builder/seller for undisclosed water damage due to them not sealing the edges of the membranes on the common area walkways, so water basically ran down the edges and buggered the bottom floors and parking garage structures.
    I don't recall the numbers, but the settlement covered the repairs. It tooks years to go through the process, though.
     
  5. Shawn1

    Shawn1

    Joined:
    Apr 2, 2003
    Messages:
    161
    Likes Received:
    0
    Location:
    New Jersey
    As a realtor here is some knowledge but varies state to state. Failure to disclose is a tricky one because in order to find the seller liable you have to prove he had knowledge and failed to disclose, he may not have known about it if you can find proof he knew somehow you can prob take him to court.. Beyond that, your inspector should have spotted it and of course he has you sign a release before the inspection just in case he does a bad job or misses something.

    On another note, another poster said that home inspections are required by law. In most states, that is not correct, just like there is no law requiring you to use an attorney for your closing. We can all agree it is smart to do so but usually not a requirement.

    Hope this helps.


    Posted using Outdoor Hub Campfire
     
  6. Shawn1

    Shawn1

    Joined:
    Apr 2, 2003
    Messages:
    161
    Likes Received:
    0
    Location:
    New Jersey
    Correction on my post above, the other poster said if its not required its recommended. Sorry about that


    Posted using Outdoor Hub Campfire
     
  7. failsafe

    failsafe

    Joined:
    Oct 25, 2003
    Messages:
    3,045
    Likes Received:
    29
    Location:
    Missouri
    In the case of a VA loan, an independant inspector does a visual inspection to satisfy the lender..They are not very thorough..A structrual defect unless noticable would go for naught.
     
  8. frizz

    frizz

    Joined:
    Jul 6, 2012
    Messages:
    1,670
    Likes Received:
    1
    In other words, can you prove that the defects are material? Someone else said that you had to prove knowledge on the part of the seller, but that is more of an issue for fraud, which can bring the potential for punitive damages.

    Unless you have a good shot at punitive damages, it often isn't worth going after anyone if you won't be able to recover lawyer's fees. If it is just a contract breach and not fraud, you usually pay your lawyer out of pocket.

    You may also have a case against the inspector. You probably hired the inspector, so there is a strong duty to you. Even if the bank or the seller (doubt it) hired him, there is still a duty toward you. I think nailing inspectors is hard because you have to get another inspector to testify against the one who inspected your house.

    Keep in mind that this stuff varies from state to state. You also have statute of limitations to consider. But you have a lawyer who specializes in this and knows the specific for your state. Or you hope so...



    Let my close by saying that this is just informal shooting the bull about how the law can be, but I don't know what the hell I'm talking about!

    Did I mention that I am a law-school dropout?
     
  9. JohnBT

    JohnBT NRA Benefactor

    Joined:
    Feb 24, 2000
    Messages:
    5,660
    Likes Received:
    524
    Location:
    Richmond, Virginia
    The seller will say, "I had it fixed years ago, there was nothing to disclose 2 years ago when you bought it."
     
  10. Batesmotel

    Batesmotel

    Joined:
    Apr 5, 2007
    Messages:
    16,122
    Likes Received:
    3,545
    Location:
    Utah
    If there was a problem and they fixed it they must disclose it. Disclosure is "Any Knowledge Of". Repaired or not.
     
  11. jollygreen

    jollygreen

    Joined:
    Apr 9, 2009
    Messages:
    921
    Likes Received:
    0
    It sounds to me like the normal wear and tear settling of a house. Houses settle, and IIRC, the last disclosure statement I saw was looking for extraordinary issues. Not common issues.

    I can't imagine you have grounds unless there is something on the statement about settling.
     
  12. Batesmotel

    Batesmotel

    Joined:
    Apr 5, 2007
    Messages:
    16,122
    Likes Received:
    3,545
    Location:
    Utah
    For what it's worth...

    Utah Sellers Property Condition Disclosure

    Instructions to seller. Seller is obligated under law to disclose to buyers defects in the property and facts to seller that materially and adversely affect the use and value of the property that cannot be discovered by a reasonable inspection by an ordinary prudent buyer.

    Section 12. B.
    With the exception of regular maintenance of the exterior surfaces of the property (paint, stain) are you aware of any past or present problems with any portion of the exterior?

    Section 15. C.
    Are you aware of any past or present movement, shifting or other problems with the walls or foundation?

    Section 15. E.
    Please describe any action taken to mitigate or repair any issued described in 15A through 15D

    So saying that the inspector missed it doesn't work because they are to disclose anything that a BUYER might miss.

    Also it doesn't matter if it is "normal". They fixed it therefore they knew and must disclose. Check the wording on your documents. They vary from state to state.
     
  13. JohnBT

    JohnBT NRA Benefactor

    Joined:
    Feb 24, 2000
    Messages:
    5,660
    Likes Received:
    524
    Location:
    Richmond, Virginia
    " that cannot be discovered by a reasonable inspection by an ordinary prudent buyer."

    The buyer saw the exterior repair easily enough 2 years later. Anyone who looked would have seen it.

    The rebuttal is, "It was visible then and it's still there."

    John

    P.S. - A fishing and poker playing buddy of mine is a self-employed lawyer and part-time real estate investor. I've learned a lot of practical things during the past 35 years.
     
  14. Mr. Niceguy

    Mr. Niceguy Senior Member

    Joined:
    Apr 7, 2005
    Messages:
    777
    Likes Received:
    27
    My rebuttal is that I had a reason to look for it two years later. The window above it wouldn't close. The repair can only be seen from behind the bushes and when crouching down.
     
  15. Mr. Niceguy

    Mr. Niceguy Senior Member

    Joined:
    Apr 7, 2005
    Messages:
    777
    Likes Received:
    27
    I had the opportunity to speak with the previous owner last night. I did so under the guise that we were doing some remodeling, and that his knowlege of the home would help me better prepare and make decisions.

    At one point, I introduced the previous repair into the conversation, mentioning that we were having some continued problems with it, and asking if he had had a professional do the previous repairs, as it might still be under warranty if that was the case. He said that unfortunately, no. A friend of the family had patched the receeding brick about ten years ago.
     
  16. JohnBT

    JohnBT NRA Benefactor

    Joined:
    Feb 24, 2000
    Messages:
    5,660
    Likes Received:
    524
    Location:
    Richmond, Virginia
    "My rebuttal is that I had a reason to look for it two years later."

    Re:re: You're admitting you failed to walk around the outside of the house 2 years ago and look at the foundation?

    Maybe things are different elsewhere; Virginia is pretty much a 'buyer beware' state when it comes to real estate.
     
  17. Mr. Niceguy

    Mr. Niceguy Senior Member

    Joined:
    Apr 7, 2005
    Messages:
    777
    Likes Received:
    27
    Part of the language in my disclosure statement reads "Are you aware of any past or present cracks or flaws in the walls or foundations?"
     
  18. Mr. Niceguy

    Mr. Niceguy Senior Member

    Joined:
    Apr 7, 2005
    Messages:
    777
    Likes Received:
    27
    What I'm probably not doing a good job of, is explaining that the area of the home is difficult to inspect. It cannot be seen from a distance because of large shrubs concealing that part of the house. When you're actually behind the shrubs, the area in question is from about thigh-level and lower. You're looking down at it at a pretty sharp angle. Given that the mortar is recessed about 1/4 inch from the surface of the brick, pretty much all you can see from that angle is the surface of the brick itself. The mortar can only really be viewed when crouching down behind the bushes. The area is also very shaded as a result of the shrubs.

    Also please note that once the original patch job failed, it became much more evident that it existed.
     
    Last edited: Nov 13, 2012
  19. md2lgyk

    md2lgyk

    Joined:
    Mar 23, 2001
    Messages:
    1,569
    Likes Received:
    34
    Location:
    WV
    I am not an attorney or a Realtor, but I have bought and sold probably a dozen houses over the years. My free advice (and worth every penny): Forget about going after the seller - there is enough ambiguity here that you might not prevail. And it will probably be far cheaper to just have the foundation repaired.
     
  20. Batesmotel

    Batesmotel

    Joined:
    Apr 5, 2007
    Messages:
    16,122
    Likes Received:
    3,545
    Location:
    Utah
    Burden of disclosure is on the seller. Doesn't matter if the seller thinks it is visible. The buyer may not have noticed.