Failure To Disclose
I currently live in a duplex I purchased 6 years ago. Recently, one of the back decks began sagging. Further investigation revealed a rotted sill plate and band board.
I hired out the repair to a very reputable contractor who is now telling me that this is not the first time this problem has been repaired. Furthermore, the previos repair was a makeshift repair meant to do nothing more than hide the problem.
The previous owner did not disclose this problem when I bought it and my home inspector did not detect it.
What would be my best course of action in this case?
I think there are some key issues here. I assume that you've now had the condition corrected which may make it virtually impossible for you to show what the problem was before your contractor took care of it. Also, you may have signed something like a waiver when you hired your home inspector. I don't know how much money is involved, but I've always been told that proving fraud is a tough road to hoe. I'd check with a local attorney to get a feel for what your options are and the possible cost of proceeding against either the seller or the inspector.
Dear Nancy,
Thank you for the tip. The work is in progress, so I can take some pictures and video. I don't think I would proceed against the home inspector as the damaged area was completely concealed by the trim. It looks like the trim in that area had been replaced, along with the decking boards nearest the house, completely hiding the damaged area. I have some other decks around the property that show similar work.
Is their a special type of attorney that I should contact, and is their someone else less expensive who could tell me whether or not to even begin the process of finding an attorney?
Seems to me you're going to spend more on lawyers than you will in getting the repairs done. You might could hit'em up in Small Claims, but like Nancy said, it'd be pretty tough to prove, particularly after, what? 6 years?
curtbixel,
I'd be inclined to get the opinion of a litigator, rather than someone who handled only real estate. Also, I'd get as much info from your contractor as possible--why he says the prior job was makeshift, etc.
Could take some pictures, get a write up from your contractor (hopefully he is licensed) say that you will be calling an attorney and just try for some quick money. I do not know what such a repair will cost, but get them to go half or for a couple thousand. They might just give you the money out of guilty conscience or not wanting to be sued.
IF (BIG if !) your inspector didn't catch it, and IF you could prove the defect existed then (tough proposition, I'd think), the H.I. Co. would owe you for their failure to catch it.
You should carefully read over his Insp. report to see what, if anything, it might show re condition of deck & ledger boards, as he probably did inspect, and the rot may well NOT have been present at that time.
I sure know that in our rainy clime, 6 years is ample time for a deck & its ledgers to rot.
But, frankly, I think it's cheaper and easier to just install new ledgers and rebuild the structure yourself... undoubtedly cheaper than whatever a lawyer would want for retainer fee.
[addsig]
It seems that your best step is to try to ascertain what your legal position is at this point.
I have a non-disclosure issue and went to an RE attorney who said he deals with non-disclosure issues. My purpose in doing this was to find out the strength of my position (legally) and to determine what remedies are likely. He did not charge me for the hour I spent with him and it gave me strength in negotiation with the previous owner. The attorney told me what I should be entitled to and to get back to him if I cannot make progress on my own.
Good luck and regards,
Ed
Thank you all again for your input.
John, I don't think there is any way the home inspector could have caught the problem. The parts that are rotted are not the deck. The rotted parts are the sill plate to the house, and the joists and band boards that proved the structure to the house. These were all completely covered on the inside by the finished basement and on the outside by trim that had been replaced. This trim shows no rot and is directly against the band board which shows severe rot. Hard to imagine the band board rotting out while it is pressed against the trim which shows no rot.
OK, so it seems to me that your real issues are:
1. Did HO conceal some defect known to him? And can you really prove it? Since he's going to deny it of course!
2. Has your state's SOL come & gone and left you now with no right to sue?
While fraud might "toll" (delay) the running of a SOL, fraud is one of the hardest things to prove legally.
I'd predict that any lawyer would tell you you've got a tough case and it's going to cost you more than you want to spend.
[addsig]