Home Buying in San Francisco>Question Details

Lizbeth, Home Buyer in San Francisco, CA

does seller need to disclose close proximity of unit to the elevator power room and that the noise can be heard in unit whenever elevator moves?

Asked by Lizbeth, San Francisco, CA Tue Nov 9, 2010

I recently moved in and found out that I hear this noise whenever the elevator is in motion. When I asked, it was brought to my attention that my unit is in close proximity to the power room for the elevator and that's the noise I'm hearing--hydroelectricity. The lights in my hallway also dim whenever the noise starts. When I asked the developer, he stated "nothing can be done about this and that the person (his relative) who sold me the apartment didn't seem to have a problem with it." As a buyer, what rights and options do I have? Do I just need to suck it up and get use to it? is it even worth any legal action?

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Answers

19
Hi Lizbeth,

This is very unfortunate. I am not aware of any legal obligation by the seller to disclose the proximity of your unit to the power room or elevator. Those items are typically discovered in advance by walking the building with either your agent or a home inspector. I am obviously not an Attorney - they are the only ones who can fully answer that question for you.

Is the noise you hear loud or are you sensitive to it? When friends and family are over do they notice it? If they do, maybe the seller chose not to disclose it when they should have. If your agent is a member of the California Association of Realtors they have access to free legal advice. Bring this issue up with them and ask them to call on your behalf. You will know pretty quickly whether you have a case or not. If that is not an option, it may be worth speaking to an attorney on your own. An initial consultation will cost very little.

Also, something to think about is what remedy are you seeking? Are you looking for a discount on the price you paid, do you want them to buy back the unit etc?

Obviously the light dimming is an issue. You should immediately report that to the city building department (see link below).

Best of luck to you!
1 vote Thank Flag Link Wed Nov 10, 2010
Lizbeth,

I am not an attorney, but I am aware of no specific disclosure regarding elevator noise, and because noise is a subjective issue it may be difficult to win a case. My guess is the former owner would say it didn't bother them so they never mentioned it.

I think that the noise level and frequency would likely determine how a judge would view this - would any reasonable person view this as a nuisance? You might record the sound and lights dimming and show it to an attorney who specializes in this area of law and see if you have a case. Depending upon the severity it could make resale difficult so want to find out.

In the end, do you want out or financial restitution? If it's the latter you might get the seller to give you some cash to avoid a lawsuit.

Best of luck


Lance King/Owner-Managing Broker
lance@fixedrateproperties.com
415.722.5549
DRE# 01384425
0 votes Thank Flag Link Tue Nov 23, 2010
In my view, this is a material fact that the seller and the listing agent should've disclosed to you on the transfer disclosure statement (TDS). On the TDS, there should be a questino that the seller had to answer regarding the presence of any nuisance at or near the property.

You have legal recourse. You may sue for damages or rescission. The statute of limitations for fraud is 3 years and for negligence is 2 years from close of escrow.

Whether or not it is worth the legal action is an individual decision. Sometimes people learn to live with it. If you can't, then you might want to think about seeking legal action.
0 votes Thank Flag Link Sun Nov 21, 2010
Yes, the seller must disclose any material facts that may affect the marketability of the unit.
0 votes Thank Flag Link Thu Nov 11, 2010
One avenue of exploration is to determine whether the sound insulation met current code at the time of construction; it would be a defect if it does not. The building code for sound transmission from an elevator shaft to living spaces is more stringent than it is for adjacent living areas, but I don't know about power rooms.

The lights in your unit should not dim when the elevator is in operation, that is a defect that the seller / daughter was obliged to disclose.

So, there's at least two areas to pursue. The entire Western World has elevator service that doesn't interfere with residential lighting, so your building shouldn't have to be an exception!
0 votes Thank Flag Link Thu Nov 11, 2010
I believe your question has been answered. However, there should be something available to minimize the noise level. Talk with other homeowners who may also be experiencing this and address the HOA and Developer to see what the options may be.

My response below will be for future buyers reading this post.

When you do your inspection and review of the property and something is off, such as..." hmmm, I wonder what that sound is.... what is that room used for.....that vacant lot gives me a great view? These are red flags to write your question and have the seller answer them in writing. It is a way to memorialize that (1) You did your due diligence, (2) how the seller responded (3) give you the opportunity to investigate further.

Ask neighbors, go to building permit departments, read the HOA newsletters and minutes. Get an understanding of the property, because what is acceptable to the seller may not be acceptable to you the buyer.

In closing, if the building is newer and there are these types of defects, the builder has a statute of limitations to remedy. Often you will find the homeowners and/or HOA will file litigation against the builder to correct these defects so that the HOA doesn't impose a special assessment to the homeowners whereby they will have to assume the defects. In the event this should happen, litigation will put a stop on the availability of resale to anyone getting a loan and values will be affected during the investigation, recovery and repair period.
Web Reference: http://terrivellios.com
0 votes Thank Flag Link Thu Nov 11, 2010
Oh, missed some questions.
No, this noise and proximity to the power room was not disclosed in the closing documents. And, Mack, you're right, it's hydraulics, not hydroelectricity. (apologies)
and the unit originally belonged to the developer's daughter (new construction) so there were no prior disclosures.
0 votes Thank Flag Link Wed Nov 10, 2010
I'm blown away by how helpful everyone is, so thank you all for not only your responses, but your time and consideration.

To answer some of the questions posted, I have discussed this with the agent who represented me in the purchase and she will be coming by tomorrow with the developer to listen to the noise. A building inspector did come to inspect the unit prior to purchase and at that time we did hear the noise, but couldn't figure out what it was. He wondered what it was too, but we left it at that. Perhaps, due to the time of day (11 am?) the elevator was not in such high use and it came on only intermittently. I have tried to get use to it, as people have suggested, but I admit to being noise sensitive. Especially because I occasionally work night shifts and have to be a daysleeper. (however, friends have also commented on the noise, so I know it's not only me)

I did receive a floor map of the building, but the power room wasn't marked and it sits a level below me.

I sought preliminary legal advice and got this response.

Under CA law, a seller has a duty to disclose any latent defects in the property of which he is aware, that would not be obvious to the buyer through a reasonable inspection. The question then, is what is considered a latent defect. If the proximity of the unit to the power room, and the resultant sound, is something that you would have been able to discover yourself, the seller doesn't have to disclose it. Unfortunately, that also means that, if the sound is noticeable when you're in the unit, it probably wouldn't be something that the seller would be required to disclose.

I'm not sure what I want at this point (to answer Michael's question). I'm not looking to gouge anyone and really like the unit. I'd like the noise to go away, that's for sure. But seeing that it's not possible, I do need to figure out what is the next best thing. I do plan to have a consultation with a real estate attorney just to figure out what my options are. thanks again!
0 votes Thank Flag Link Wed Nov 10, 2010
Lizbeth,

You haven't replied to my question. Did you use an agent to represent you in this purchase and if so, have you discussed this issue with him/her? What was the response?

Have you tried looking through your copy of the disclosures for any reference to elevator noise and proximity?

Please provide some more information.

Thanks,

Oggi Kashi,
Broker Associate
Paragon Real Esatte Group dre1844627
Web Reference: http://www.oggikashi.com/
0 votes Thank Flag Link Wed Nov 10, 2010
At this point it may be in your best interest to consult with an attorney and see exactly what options you may have--then go from there. Maybe possible remedies exist that the developer can forced to do on your behalf--again, an attorney can advise best.
0 votes Thank Flag Link Wed Nov 10, 2010
Material Fact and Due Diligence are two very important topics in Real Estate. I do not know your state's building laws with regards to acceptable level of noise or electrical loads. So it sounds as though there may be research needed before you commit to a lengthy and costly process such as litigation. Certainly as with any purchase, buyers should always make sure due diligence is performed before releasing contingencies on the purchase of their home. This includes bringing in knowledgeable professionals that represent you the buyer without some other agenda. With all that being said, your options are 1) live with it, 2) talk to the developer and see if you can be upgraded to a different unit, and/or 3) consult with a real estate lawyer.
0 votes Thank Flag Link Wed Nov 10, 2010
I'm pretty sure you're not hearing "hydroelectricity," but I think you do have a challenge in front of you if you attempt legal action. An attorney will advise you better; I suspect that in court, the opposing attorney would ask if you had been provided with a plat map or floor plan, or whether you had the opportunity to notice that there was a room near your unit that wasn't an apartment.

However, I think that the dimming light effect is a defect which should have been disclosed to you.

Only an attorney can answer "what rights and options" you have; you should spring for one because you will now, certainly, have to disclose this problem when you go to sell.

All the best,
0 votes Thank Flag Link Wed Nov 10, 2010
Short Answer:

A seller must disclose any "Material Fact" that may influence a buyers decision on whether to purchase a property. Material Fact is a grey area.

Even if it didn't bother the previous owner but it was heard, it should have been disclosed. You will certainly have to disclose this when you sell. This may be a good situation to seek legal counsel. If you do decided to go that route, do it sooner rather than later.

Best Regards,

Eric
0 votes Thank Flag Link Wed Nov 10, 2010
Hi Lizbeth:

Your experience is exactly why it is really important as a buyer to take a lot of time to get to know the property you are buying as best you can before you sign off on the contingencies. Night time, day time, weekends - ideally, you want to take time during escrow to be sure that something like an elevator power room, or a nearby train track, traffic patterns (schools can be a real problem twice a day during the school year and on weekends with sports), etc. isn't going to bother you. Cell phone coverage is another big one in some places.

Your situation also demonstrates why it is so important to work with a real estate professional who views them self as an advisor/consultant instead of a sales agent. I believe having someone who is tuned into those types of issues is critical because as a buyer, you are simply focused on other items. The last thing I want is my client to move into a place and be faced with your exact situation.

While contacting your agent is certainly appropriate, consulting with a real estate attorney may be more helpful for you to understand what legal remedy, if any, you might have. It seems that when you go to sell, it is something you would need to disclose....and it very well could impact the salability of your unit. The people who you dealt with on the transaction will likely distance themselves from you once you bring up the issue, so that is why bringing your own attorney into the mix makes sense for your best interest. Maybe your agent can refer one to you.

People who live by train tracks get used to it. People who live by airports get used to it. You very well may get used to the elevator....but just because they are "used to it" and it doesn't bother them, doesn't mean they don't need to disclose it when it comes time to sell.

I know of a situation in an condo complex in which a buyer sued the seller, the listing agent, and his agent because his assigned parking spot was next to a column in the underground parking garage. He couldn't park his truck there and open the car door and the HOA refused to change his spot. I don't know the outcome of that case (I expect insurance came in on the part of the defendants and settled it out), but it is an example what would seem to be a less obvious disclosure than your situation and the buyer brought in the big guns. After seeing that, I always check the parking spots in underground garages!

I am sorry you are faced with this situation...I don't think sucking it up is the answer. Best of luck!

BeachBrokerBill
DRE#01775528
0 votes Thank Flag Link Tue Nov 9, 2010
Sorry for your delmia Lizbeth, sadly what is noice to one may not be to someone else. We don't have any mandated near an elevator disclosures, if you didn't use a buyers agent to represent you this may have been handled with their knowledge of the complex/area nuances. Buying from a developer is never a great idea they have a lot on the line to move those propreties.. People should remember you are always able and allowed to be represented.. I wouldn't think a law suite would be worth the time and expence. I used to live on a very major street in Los Angeles, over time the traffic noise really did go to white noise, until a car crash ofcourse brought it home... try to find ways to buffer the wall to reduce noice... or you could always move...good luck
0 votes Thank Flag Link Tue Nov 9, 2010
Wow, what a pain, sorry. I think you are going to have to do more than talk with your agent. You may have to take legal action.

It sounds like you just moved in. The sooner you take action the better. If you cannot get the seller to take the property back, make sure to get s LARGE discount because you are going to have to live with it and you will have to disclose it when you sell.

Here is an idea and it wont cost you anything, why don't you call Michael Finney with Channel 7 on your side?

Best,

Tap
0 votes Thank Flag Link Tue Nov 9, 2010
When in doubt disclose, disclose, disclose. And in your case, you have made it known that it is an issue for you, so if you sell without disclosing it, and it's an issue for the next person, you might find yourself getting sued. Now whether or not you have a case against the person who sold it to you without disclosing the issue - that's a question for an attorney.
0 votes Thank Flag Link Tue Nov 9, 2010
I agree with Oggi. Have you talked to your agent?

This is thorny, as disclosure can be. What is a problem to one person, may not be a problem to another. Was this a unit owned by the developer (new construction) or a resale? What disclosures were provided? What disclosures might have been provided to the seller when they bought?

good luck.

Eric Castongia
Zephyr Real Estate
Eric@SFHotBuy.com
Web Reference: http://www.SFHotBuy.com
0 votes Thank Flag Link Tue Nov 9, 2010
Have you brought this to the attention of your agent?

Oggi Kashi,
Broker Associate
Paragon Real Esatte Group dre1844627
Web Reference: http://www.oggikashi.com/
0 votes Thank Flag Link Tue Nov 9, 2010
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