Material defect claimed to have been fixed before closing, Was misdiagnosed and the wrong repair was made, whose responsibility, buyer's or

Asked by Frdrake, 32904 Thu Sep 1, 2011

seller's? We purchased a home and 2 weeks before closing we got a report that water was leaking from the upstairs bathroom down into the washroom. Our home inspection had already occured and the home inspector didn't find any signs of a new leak although he did say he saw a dry discolored spot in the washroom indicating a leak from some point but he couldn't find a cause. The seller sent a contractor who determined the cause may be a bad toilet so the toilet was replaced.

I do a walk through before closing and there is indeed a new toilet and I check and can find no evidence of a leak so I proceed with the closing. After 2 weeks living in the house my wife notices that the light fixture in the washroom is filling up with water, so we test it and the water level is rising in the globe slowly so there is still a leak occuring in the house. After some investigation my guess is the drain in the master shower. Is the seller responsible for the leak since they never fixed it to begin with?

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12
Don Tepper, Agent, Burke, VA
Thu Sep 1, 2011
I'm not a lawyer, so this isn't legal advice. For that, you need a lawyer.

My decidely non-legal reaction is that you're out of luck.

Your home inspector--a professional you hired--didn't find evidence of an active leak. He did identify something that indicated that, at some point in the past, there may have been a leak.

The seller appears to have been responsive. He hired a professional--a contractor--who in his best judgment thought that the leak might be caused by a bad toilet. Acting on his professional's recommendation, the seller replaced the toilet.

You do a walk through prior to closing and find no evidence of a leak. You see that, per your agreement, the seller has replaced the toilet. All that's reasonable. So you go to closing.

But the leak's still there. You suspect (and you may be correct) that it's the drain in the master shower. So: Is the seller responsible?

Yes, if the seller was aware of a faulty drain in the master shower (if that's the cause . . . which at this point you're not sure of).

Yes, if the seller was aware of an active leak from an unknown cause. (But can you prove that?)

No, if the seller wasn't aware of an active leak. (Remember: The seller replaced the toilet even though there wasn't an active leak.)

No, if the seller believed that any leak was addressed by the toilet replacement. (A reasonable assumption, since the seller was relying on a professional--the contractor--to make that determination.)

In fact, you can't even prove (at this point) that the leak that's filling up your light fixture isn't a new leak, totally unrelated to whatever might have caused the discolored spot previously.

I doubt that any home warranty would cover your situation, but if there is a home warranty in effect, it'd be worth checking.

And, of course, you can consult with a lawyer.

Understand: I sympathize with you. It sounds as if you did everything right. It also sounds as if the seller was acting in good faith. And I'm not a lawyer, so my analysis above may be absolutely incorrect. But I think that it'd be difficult to argue that the seller is responsible in this case.

Good luck.
4 votes
Frdrake, Home Buyer, 32904
Fri Sep 2, 2011
I never specified any repairs to be made, but I see what you're saying and why. When the leaking was first discovered by the appraiser who was doing the bank appraisal the seller immediately said they would take care of it and I was kept out of the loop and wasn't shown any receipts until after closing. The brief info I got in regards to the issue was that they determined the toilet had been leaking and had had it replaced. After doing more research I see that the much better solution is to get my own people out there and ask for a credit in regards to the claim. The leak/damage is behind walls and to get the repair done as it is now I'm going to need someone to cut a hole in the washroom ceiling and go in and fix whatever is wrong.

We just recently moved here and were living with my in-laws 45 minutes away from my new job and we were trying to get our kids signed up for school etc. There was so much going on I was relieved that someone else was going to take care of something, as I should have expected "If you want the job done right....."

Thanks again for all your responses, I appreciate you taking the time to share your expertise.
1 vote
Cheryl Griff…, , Melbourne, FL
Thu Sep 1, 2011
Like the other Realtors, I will start with a disclaimer that I am not an attorney, and we always advice you to consult with your attorney for legal advice. That said, all the situations you may encounter from the time you submit your purchase agreement to closing and thereafter are dictated by the verbage in the contract you signed. Since you purchased in Florida, I will assume you used either a Residential Contract for Sale and Purchase or the "As Is" Version of the same. These contracts are prepared by the Florida Bar Association and the Florida Realtors Association. Purchase contracts vary from state to state. Since your seller made some repairs, you most likely used the former. You should have a copy of your Purchase Agreement. If you refer to Lines 213 to 252 and Lines 303 through 308, you can see how repairs were agreed to be handled. Then, Lines 297 through 302 refer to your walk-through. Finally, Lines 370 through 381 address how disputes will be resolved.

Basically, I believe that unless you can prove that the Seller was aware that the replacement of the toilet was not going to solve the problem, then you probably have no recourse against him. Furthermore, if you specified what repairs were to be made, in response to the inspection, then presumably the seller did exactly as you asked. It is not unusual to have a list of repairs, only some of which the buyer will ask the seller to fix, which should be agreed to in writing after the inspection.

I know it is too late for this now, but I sometimes suggest that buyers get a couple of opinions/estimates from contractors regarding what needs to be done to rectify such a situation, then have the seller contribute to their closing costs in an equitable amount instead of arranging for the repairs. (This requires an addendum to the contract, but is easily accomplised.) That way,the buyer can choose who will do the repairs and oversee how they are done. Furthermore, it might make it easier to go back to the same contractor if his diagnosed "fix" did not take care of the problem.
1 vote
Tim Moore, Agent, Kitty Hawk, NC
Thu Sep 1, 2011
I also agree with Don, and I too am not a lawyer but I do pretend to be one in the privacy of my own home.

I think that the act of going to the closing along with the fact you had a home inspection and a remedy to what they said was the problem puts the burden now on you. Your only other recourse would be to claim they hid the true problem from you, but it sounds like that was not the case. Things do happen and it is remotely possible you have a new problem and the previous one might have been fixed with the new toilet. Good luck with it.
1 vote
Mack McCoy, Agent, Seattle, WA
Thu Sep 1, 2011
I don't think a judge would rule in your favor, FR. While I am not a legal expert, I would expect that the judge would want to know if the Seller had disclosed everything they knew about this problem and whether you had been afforded the opportunity to discover problems without damaging the property.

If the Seller honestly disclosed what they knew and made a good-faith attempt to solve the problem you asked them to address . . . let's turn things around. If it were you, wouldn't you like to think you'd done everything asked and that you were now off the hook?

The reality is that we cannot ensure that a home is defect-free. We can take reasonable steps to minimize the chances of a defect, but we can't eliminate them all.

Have you ever sold or traded-in a car? Isn't there a point where you expect that you won't get a call complaining that something or other is broken and won't you fix it? I think your seller may be at that point, today.

I do not take joy in telling you this.

All the best,
0 votes
Alma Kee, Agent, Tampa, FL
Thu Sep 1, 2011
Sounds like the Seller made repairs and you chose not to pay your own expert to come out to reinspect the repairs. The Seller probably acted in good faith and relied on the expert he hired. I suppose an unethical seller could hire a friend but your receipt would indicate whether or not the repairs were done by a licensed plumber. Most plumbers wouldn't risk their reputation to falsify a repair. It's possible there were 2 leaks, too.

Next time, have your own "expert" (a plumber in this case) verify any repairs.

All the best,
Alma

PS Now that you are the owner, if you didn't require it in your contract, go get a C.L.U.E. report, it's free and it will tell of any insurance claims that were made on the house in the past 5 years. I always have Sellers provide a CLUE Report to my buyer so we know upfront of any insurance claims.
0 votes
Bob Radigan, Agent, Sanibel, FL
Thu Sep 1, 2011
It would not hurt to ask the seller to participate, it sounds like they tried to do the right thing. The home inspector should have had a moisture meter to check if the leak was active or not with visible evidence of water stains.

Its probably relatively minor repair especially in the context of legal fee's. I hope you can work it out with the seller.

Bob Radigan
Realtors In Paradise
http://www.SanibelandCaptivaRealestate.com
239-691-6240
0 votes
Frdrake, Home Buyer, 32904
Thu Sep 1, 2011
I've talked to the realtor and the contractor, he says he will ensure everything with the replaced toilet is A. OK but that's it.
0 votes
Mott Marvin…, Agent, Sunny Isles Beach, FL
Thu Sep 1, 2011
Frdrake:

It "seems" like the seller "may" still be on the hook in this regard.

Perhaps, the contractor or "handyman" that completed the work was not 100% sure of the scope of the
job. It is also possible that the sellers wanted to cut corners and just make things look repaired.

Try to get together with the seller and contractor- it may be easier than you think to get this resolved.

- Name ~≈~ Mott Marvin Kornicki
- Email ~≈~ WaterwayRealty@GMail.com
- Website ~≈~ http://www.WaterwayRealty.com
- FourSquare ~≈~ http://4sq.com/mPOkka
0 votes
Frdrake, Home Buyer, 32904
Thu Sep 1, 2011
Thanks for the responses, and that's really what I'm trying to figure out without dropping an extra $150 on a lawyer consultation, whether or not I'm out of luck in this situation.

We closed Aug. 5th and I notified the seller's real estate agent on Aug. 24 after I had tried to determine the cause and make a fix if it was something possible by me. The part that I don't understand is maybe I should have hired someone to do the repairs and then charged the seller maybe? The way it was phrased to me was that someone was hired to repair the leak and so I requested all receipts for the work performed. And maybe that's where it's my bad that I did not receive the receipts before the sale and still closed without having them in my hands. When I received the receipts afterward it was nothing more than a work order for replacement of the toilet.

I'm a first time home buyer and I guess a little naive, I thought with the receipts of the work performed that it would warranty against the issue. In hindsight I shold have had a signed provision of some kind that would insure the work. And while yes it is true that I have no proof it was an existing leak the fact that out of a 2200 sq ft. house it happens to leak in exactly the same spot as the supposed "fixed" leak has to speak for something.

I also don't understand what would then be to keep a crooked seller from hiring a "contractor" (this contractor by the way was someone the sellers had used to clean the house before and he told me he does alot of work for realtors in the area fixing up property to sell) to put a "fix" on the house that would not address the issue but be enough to placate a buyer and then keep them unresponsible for a real issue which was then masked.

Now I'm not going to immediately jump there but we've found many things so far that were "patched" up just to get the house out of the door. Along the lines of a set of window blinds we found was being held up on one side because someone had shoved realtors business cards into the fitting as a spacer to give the blinds enough force to stay in their fittings. When we moved in our dryer didn't dry clothes and it turned out the reason was because the dryer vent pipe to the top of the house was entirely impacted according to the repairman that we hired to fix it, his claim was that it had just never been cleaned as far as he could tell, not sure how anyone who lived in the house prior had not been able to notice that one.

It feels like I bought a short sale but I paid full price.

Once again thank you all for your insights, I really appreciate your time reading my question.
0 votes
Genevieve Ra…, Agent, Punta Gorda, FL
Thu Sep 1, 2011
If you did a walk through and signed off on it, you may have to do the fixing. However, you had an inspection, which did not show the problem and when a problem presented itself, the seller did send someone out to identify and fix.
Get an estimate of what it will cost you to fix and talk to your Realtor, to try and get the seller to contribute towards fixing it.
Good Luck!
0 votes
Caroline Choi, Agent, Los Angeles, CA
Thu Sep 1, 2011
It depends on what you may have signed before escrow closed. If you signed a final walk through document stating that all repairs were completed prior to close, then it may just end up being your responsibility. Review your documents, or contact your agent to find out what specific recourse you might have, based on the contracts signed. Did you end up getting a home warranty policy? If you did, speak to your home warranty rep to see if this leak can be covered under their policy. Best of luck, Caroline
0 votes
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