Is it reasonable to assume that the area was obscured from view? Is it possible that the leak is newer (mold can grow quickly) and was not present or was very minor at the inspection? Is it possible that the shower was not used frequently enough by the previous owners to produce the leaking effects that you noticed? Or, is it simply bad luck that it recently broke under your new ownership?
If there was an attempt to conceal the damage (new paneling or drywall or recent paint) then that would indicate the owners knew and did not disclose it. If there was no indicaton they atttempted to cover it up, then it is quite possible they did not know of it and could not have disclosed it (you can't report what you don't know about).
Similarly, if no one saw the damaged area at the inspection or final walk through, or if the area was obscured from view at the inspection, then it is very possible that the condition wasn't able to be seen by the inspector.
If you determine that the inspector reasonably should have identified this problem, then you should review your inspection contract. Most inspection contracts have a clause that tells you what to do in event of a claim - typically they say to call the inspector and offer him the chance to view the condition as soon as possible after you discover it (DO NOT GET A REPAIR DONE BEFORE THE INSPECTOR REVIEW). The inspector can then respond to your complaint and you can work out the matter between the two of you.
Of course, as others suggested, you always can contact a real estate attorney for a legal opinion on the matter. My help is simply anecdotal and from a practical standpoint as an inspector.
In case it helps you, I have received calls from clients with similar concerns after they move in. Most times, I am able to help them understand why their concern wasn't able to be identified during an inspection. Often, it doesn't make them happy (it's not the "I'll pay for it" answer they were looking for) but at least they understand what happened and why, and why it wasn't noticed on the inspection(sometimes it is, and they just ignore it - but that's another case entirely!!! ;-) )
All that being said, I don't see why you wouldn't be able to take action with the previous owner and/or the inspector. When looking at the home, was the closet filled with stuff and you were unable to see everything? This may have been the case with the inspector. Also, what about the final walk through? The home should have been empty then and you could have noticed something then.
I am not trying to point the finger back at you. I am just bringing up what they will ask. Perhaps the homeowners really did not know the damage was there until moving out day. Perhaps the inspector could not get to that area to inspect.
Sorry I could not give you a definitive answer, but this really should go to an attorney.
Terrence Charest, e-ProÂ®
Century 21 Associates
905 Easton Road
Willow Grove, PA 19090
Cell (Preferred): 267.614.1494
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