Charlie
I would review the written reports. Written documents always supersede oral evidence. (this is not legal advice).

The main reason that buyers sue sellers is for non-disclosure. That means that the seller was aware of materials facts (facts that if the buyer were to be made aware might affect their decision to purchase). The time for discovery I think is three years from the time of discovery to take action, although that time may be different in your area).

The key here is "would the seller have reasonably known that they windows did not operate?" . If the seller writes that "all the windows operate" and they do not, that's a problem. The Realtor's responsibility is to reasonably know about the property condition. If you told them that all the windows needed to be operable, and they did not try each window, I do not know if the Realtor would be responsible. In most cases the Realtor is supposed to be professional but is not held to the same level of knowledge as a building inspector.

The paperwork will probably answer your questions. If in doubt, discuss the your Realtor or perhaps their broker. Did you purchase a home warranty? Some aspects might be covered.

Most walk thru reports are signed by the buyer stating that they have personally inspected all items and all requested repairs have been made.

Why do you think the agent knew about the windows? Did the agent live in the house? In most cases, I would not know if my sellers didn't tell me... and if they did tell me, then I would have an obligation to disclose.

Did you do a home inspection? If a home inspection was done, then you might have a claim against the inspector. The inspector I recommend does open all the windows, I don't.

The seller (theoretically) probably knew, if the seller was living in the home, but I am not certain if they had obligation to disclose. They may have felt it was an improvement - i.e. no drafts around the windows.

The buyer has the right to inspect the property in almost all cases - before they write an offer, if there is a home inspection in the contract, at the home inspection, and again at a final walk through. Other than the home inspection, I've never seen anyone check the windows; but you always can.

I am not sure what an attorney would say, but I'd be interested, so be sure and post if you do talk to one.

Hello Charlie,

Mary is on the money with the advice about contacting an attorney. Here is one thing to think of though, it is not meant as an attack but just the facts. Regardless of what transpired with your Realtor the responsibility for due diligence falls upon the buyer. That means that the buyer, not the Realtor, is responsible in the end to make sure everything is working during the pre-close, final walk through. Going after your Realtor might be fruitless.

If you had a Home Inspection performed you could always go after the Inspector. However, you're in Virginia and you bought a little over a year ago. Virginia has very temperate late Spring through Fall weather and it would be difficult to understand why you never opened the windows in over a year to find this. I know you stated you found it shortly after closing but the next question would be why you waited until now to make an issue of it. If this condition existed during the home inspection and it was not reported on then do not expect an incompetent Inspector to step up to the plate and do what is right. If there are other obvious flaws with the inspection you could use those as the basis and add the window issue in to the mix.

One last thing to think about would be the cost of any lawsuit in both money, time and aggravation. Not sure of your costs there but here an average grade, 3/0 X 6/0 (3' X 6') window runs about $250 - $350 each for replacement and labor. Get an estimate for window repairs/replacement and ask a lawyer what your dollar costs will be to fight this. You may be better off just repairing/replacing windows and accepting this as a lesson from the school of hard knocks.

Good luck on your situation. If you would like to speak about your inspection report feel free to contact me.

Emmanuel J. Scanlan
PS Inspection & Property Services LLC http://www.psinspection.com
214-418-4366 (cell)
TREC License # 7593
International Code Council, Residential Combination Inspector #5247015-R5 (Electrical, Mechanical, Plumbing and Building)
Certified Infrared Thermographer (ASNT-TC1A Standards)
Texas Residential Construction Commission, Third Party Warranty Inspector #1593
Texas Residential Construction Commission, Inspector, County Inspection Program
Texas Department Of Insurance, VIP Inspector # 08507061016
Hayman Residential Engineering Services, Field Technician
CMC Energy - Certified Energy Auditor

Knowledge is power, but sharing knowledge brings peace!!

I would suggest contacting a Real Estate attorney in your area.

You might want to be prepared to answer such questions as: Did you have a home inspection? Home inspectors open and shut the windows. Have you opened and closed the windows at all during the year that you lived there? Have you done any painting or caulking in the year that you've been living there?

I'm not an attorney, Charlie, so I don't know what one would say. But, those are probably some of the questions an attorney would ask.

Good luck.
Good luck.