Home Purchase - Failure to Disclose Issues: Has Anyone Ever Sued?

Updated on June 14, 2013
M.E. asks from Deerfield, IL
28 answers

We purchased a house 9 months ago. Since then we have discovered that there are flooding issues which were hidden by some well placed pallets/doors (in the garage and basement) and some that weren't apparent until it rained. Also a front porch with rotted boards that were patched and painted. We have contacted the seller and he's been difficult, to put it mildly. He's even refused to pay for a gutter cleaning that was agreed to by his attorney at the closing. We are considering suing him for about $20,000, the cost of repairs. The potential cost to sue would be up to $5000 and there's no guarantee we would prevail. The seller is a jerk and very cheap. We have sent him polite letters regarding the problems and he denied any knowledge of the issue which is impossible. Have you ever sued a seller in small claims court? We will be using an attorney. This isn't a contractor issue but a homeowner who lied on the disclosure forms. He has also indicated to us that he will keep us in litigation for a while. Thanks.

Edit: This was not an as is sale and on the disclosure sheet they stated that they had no knowledge of flooding. The flooding occurs in the garage. The soil level is higher than the foundation and the water flows over the foundation into the basement. We are getting this corrected as well as the pooling of water in the paver patio that comes within an inch of the threshold of our exterior family room doors. We did have the gutters cleaned we're just hoping to get reimbursed as was agreed upon. At our walk through on the day of the closing we noticed that the gutters have not been cleaned per our agreement, and we brought it up when we did the final funds transaction which is the protocol for this state.

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So What Happened?

We had a home inspection. The inspector does not move anything. We should have removed obstacles for him. We have stopped communicating with the seller. In Illinois, there is a lot more seller/buyer communication, which I personally do not like. We moved from California and there was virtually no seller/buyer communication. It was all through the agents. And, yes, we had a real estate agent. The rotten boards were supposed to be replaced as per agreement in our contract but they were not replaced just filled with putty. The attorney has sent a request for payment of the gutter cleaning (it's only $169) and the seller has refused. It is in writing.

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answers from New York on

Where did you find the inspector. These are things he should have caught if he was any good. I would get in touch ill him.

2 moms found this helpful


answers from Jacksonville on

You should not have closed until the rotten boards were replaced and you had evidence of the replacement. The cost of gutter cleaning probably should've been credited to you on the sale price. The other stuff... buyer beware. Its probably too late now.

1 mom found this helpful

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answers from Washington DC on

if you can make a reasonable case (and it sounds like you can) that the owner was aware of the issues and deliberately concealed them or withheld information, you have a good chance of winning.
the downside is the upfront expense, and the stress of going through a court procedure. especially since you know this fellow isn't particularly ethical, and willing to use courtroom dodges to keep you suspended (and paying your attorney.)
is it worth it?
sorry you are dealing with this. i wish violently inflamed hemorrhoids on the jerk.

9 moms found this helpful


answers from Lakeland on

Legally you would have to sue the home inspector. He should have moved things and noticed the rotted boards on the front porch. I am sorry that you are going through this but he (the seller) can continue to say he didn't know about any of these problems.

As a home owner (several rental proprieties too) I would say use your money to fix these problems and move on. It will end up costing you two to three times as much with legal fees and you may not even win in court. I learned the hard way with my first home purchase. I bought a house from an inexperienced flipper and got screwed big time. I had to gut the entire house to the studs and replace everything (plumbing, electric inside and outside, re-drilled the well and replaced the septic).

I learned a lot since then and will always be onsite with any home inspection, I can see problems now that I would not have seen then.

7 moms found this helpful


answers from Boston on

Did you have a home inspection? Real estate purchase processes differ by state but here, it's buyer beware. The problems you mention sound like they would have been found in a routine home inspection. If you didn't have one, I think you're out of luck. If you did have an inspection and the inspector didn't pick up on these things, you can sue him. I don't believe that the disclosure form is binding. A homeowner can please ignorance and stupidity. A professional inspector can't.

7 moms found this helpful


answers from Chicago on

Our sellers (owned the house from the time it was built in 1979-2006) also failed to disclose persistent water issues in the basement (luckily it is unfinished). They signed that form that says that they know of no water issues. BS--within 4 months of buying this house we had a major flood that caused us to get a new water heater, and another one just months later. When we looked around the basement we noticed that the shelving units they left behind had been elevated on blocks, and they seemed to have some water stains on them. We also noticed some areas in the foundation that look like they were trying to stop water infiltration.

No, we haven't sued, but only because we don't have the time to go through litigation. The days or weeks we might spend on it aren't worth the loss of income my husband would have if he had to take time off work to address it. From our experience, as well as that of many others in the Chicagoland area, home inspectors are TERRIBLE at detecting water issues. The next time we buy we are having someone inspect specifically for water.

I would think with the frequency of flooding problems here in Chicago the state laws would back up the buyer. It's gotta be a huge problem.

Good luck to you!

5 moms found this helpful


answers from New York on

Your inspection should have revealed the flooding and rotten board problem.

For the gutter cleanings, contact your lawyer. If it was in the contract, the seller needs to pay up.

5 moms found this helpful


answers from Milwaukee on

My husband was a licensed home inspector for the state of Wisconsin a few years back, & there seems to be some misconceptions about the process in peoples responses below:

1. Home inspectors CAN NOT move anything in the home they are inspecting. What they can do, is write a note that "such & such areas were unable to be inspected due to obstruction". If the prospective home buyers are present @ the time of inspection & move the items for the inspector, it is considered a "gray area", but the inspector is at risk for litigation against themselves if they move items or ask anyone but the seller to do so.

2. Realtors/agents CAN NOT make you get an inspection with any particular company. What many of them do is provide the brochures/references of a few that they know or who have asked them to distribute materials. But it is entirely up to the prospective homebuyer to choose an inspector & utilize the information that they provide. This actually makes it a bit harder for the home inspectors, because they cannot get "great referrals" from realtors that they have "in their pocket", & is enforced for the protection of the buyer, so that a realtor & inspector cannot work in cahoots with each other to snowball someone into buying a problematic property.

Your best bet is to take your inspection report to an attourney & review to see if there is anything that the inspector failed to disclose about the property. If he properly disclosed that areas were unable to be accessed, or that the structure & soundness of the home was unable to be assessed due to personal property in the home @ the time of inspection, then you will have a very long battle & to be honest, there is a good likelihood it will not go in your favor.

You will need to prove that the homeowner specifically stated that there were not problems when in reality he had knowledge that there were (things such as filling out a form that said "no flooding history" while he received compensation for flooding or had work done to repair damage from flooding previously).

Unfortunately, it is a "buyer beware" situation when buying a house... even if the inspector had been able to access everything, if there were issues that would not have been apparent unless/until it actually rained, they may not be liable for the issue. Some reasons for this are: maybe a light/moderate rain provides no issue, but a once in 10 years torrential downpour is a problem. There is no reasonable way to expect an inspector to identify that.

Best of luck, what a rotten situation to be in. If your attourney can give you a strong probablility of having a winnable case in court, even if it is dragged out, $20K is not chump change. Just know the burden of all proof will lie with you to prove to the judge. T.

4 moms found this helpful


answers from Houston on

Pick your battles. That is really the only advice I have. I do know that to find him at fault it would have to be proven that he knew about the issues before he sold the house. Not that "it's obvious he knew", but that he 'DID KNOW'. That would be your battle.
Consider all possibilities. What if he wins or found 'not at fault'?!?!
If he has the money to keep you in litigation, are you prepared for that just to 'prove a point'? I feel for you and understand your frustration but sometimes it's just better to chalk it up as a lesson learned.
And shame on your inspector, if you really want someone held accountable throw him in hot seat as well.

4 moms found this helpful


answers from Chicago on

I'm in Illinois and am not sure what you are talking about regarding there being more buyer/seller communication. We never spoke to or met the sellers of our house. Your first problem is that you had a crappy real estate agent. EVERYTHING should have been done through your agent, and when it wasn't, you should have fired them. Personally, I would chalk this up to a lesson learned. You never sign off on a closing until everything is completed as stipulated in the contract.

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answers from Dallas on

You will need to get state specific information because real estate law differs on a state by state basis. You should contact an attorney to find out what your rights are. Did you get a home inspection prior to closing? A lot of these issues should have been discovered at that time. Did you buy the house "as is"? There are a couple of issues of fraud and concealment that could be reviewed. Also, I would look into the flooding issues to see if you are in a flood plan that he failed to disclose. Was a realtor involved in this transaction? We did have a title problem with a property we purchased and the title company had to go back and resolve the issue at their expense, but I have no experience with having to sue for undeclared damage to a house. Did the attorney agree to a gutter cleaning in writing at the closing? Was that noted on any of the papers? If so, you can probably sue for specific performance. You should contact your title company and then the attorney who represented the seller. Good luck! I think I would have the house inspected now, just to see if there are any other issues that you need to get resolved.

4 moms found this helpful


answers from St. Louis on

It seems like you are angry and just lashing out at everything. Nine months ago was September, did you actually inspect the gutters when you moved in or are the overflowing now so you are upset? Every spring I clean my gutters because over the fall and winter leaves fall and clog them up again.

I am saying pick your battles.

20,000 seems very high, what repairs are you talking about? Even if you can prove he knew, courts don't give you what you want, the only give what is needed.

Inspectors move what is needed and around here they know where to look for flooding issues. Like are the downspouts diverted away from the foundation properly, slope of the land, things like that. I think your first step should be to speak to the inspector. He will be able to tell you why he missed it and whether it is the responsibility of the previous owner.

Oh and Illinois small claims limit is 10,000.

4 moms found this helpful


answers from Chicago on

Stop all communication with the seller, it will only hurt you in the long run. This is why you had a lawyer at closing. If things were promised at closing, money should have been set a side and held by the lawyer.
You don't say what the flooding issues are. The disclosure has very specific questions.
Talk to the neighbors, see what they know but, be careful...they might be in contact with the seller.
As for the porch, it was repaired, that is all that is required.

4 moms found this helpful


answers from Washington DC on

Did you have a home inspection done? If so - they should have MOVED the pallets and checked the gutters, etc.

Contact the lawyer who did your closing. Find out your state laws on nondisclosure on home purchases.

If it were me? If he has failed to do what he promised to do at closing? He's NOT going to do anything NOW. Will spending $5K make it right? Even if you were to win - there is NO guarantee you will get your money. It costs to place garnishments....liens and levies...is it REALLY worth the hassle?

If not - suck it up and get the stuff fixed and move on.

3 moms found this helpful


answers from Boston on

Stop talking to him. Talk to your attorney and also the home inspector who didn't find these issues yet signed off on the inspection. Small claims court isn't going to help you with $20,000 in damages. I think the limit is $5K.

Litigation is costly and time-consuming. A neighbor has gone through this. She's spent $50,000 dealing with basement flooding and a bunch of furniture that got ruined, and had the same problems with the seller - he's not interested in dealing with you.

3 moms found this helpful


answers from New York on

The home inspector was supposed to be working for you andn uncovering any problems. What often happens, however, is that the inspector is recommended by your real esate person. do you realize how your real estate person is paid? By commission from the person selling the house. See how the arrows point? The RE agent wants to get paid and gets you an inspector who'll only point out big, obivous stuff like the roof, and won't pick out the "little stuff" that will slow down the process and their payment.

<deep sigh> I once bought a house that was on a superfund site. The home inspector only checked out the dwelling - not the land it was built on. He also didn't tell us the the electric service into the house wouldn't support the needs of a modern family and I blew fuses every time I vacuumed!

I don't think you're going to have any luck on this. Remember Economics 101? "Caveat emptor" - let the buyer beware. I assume you and the inspector had plenty of time too look around, move things if desired, etc. Unfortunately for you, he didn't do his job. To me the lawsuit should be against the inspector. But don't hold your breath...

As for the seller - he's go his money 9 months ago, and he's moved on...

It's not right, but it is what it is.

3 moms found this helpful


answers from Kansas City on

I think you need to get estimates for the repair work and compare that to potential legal costs involved. (Don't forget lost income, etc.)
I'm pretty sure you can get this fixed for under 20K.

I probably would not choose to sue. Just not a Dan of throwing good money after bad.

Cleaning the gutters? Why don't you just do it? Yesterday. Weigh making a point against potential roof/water damage.

Sounds like your home inspector either sucks (wet basements are easily identified--smell, marks, etc. without having to see every inch.) or didn't care. too bad he was more concerned with clogged gutters...

3 moms found this helpful


answers from Springfield on

I have only ever bought one house, so please take what I say with a grain of salt. I do, however, live in Illinois.

Have you talked to your real estate agent? If not, that would be my next phone call. Your realtor is your adviser in every aspect of home buying. He/she goes over things with you - pros and cons of each place, all points on the home inspection, things that need to be replaced and fixed. It is his/her job to make sure you understand with everything and either agree with it or to it or help you fix it or make it right. Your realtor should care whether or not you are a satisfied customer, as future business could come from you, personally, or referrals. Referrals are huge in teh real estate business. This person should want to do whatever he/she can to help make it right for you.

Our real estate agent provided us with a list of home inspectors that she had worked with. She was not allowed, by law, to recommend one. She was very careful in what she said about them and would not give us a recommendation. Once we had the inspection done, she went over everything with us. Also, we did not close on the house until everything noted by the inspector was repaired.

You said in your SWH, "The inspector does not move anything. We should have removed obstacles for him." Who told you this? Was it the inspector? If the inspector told you this, he was just saying it in the hopes that you would buy it and not sue him. It IS his (or her) responsibility to move things and, you know, actually inspect! Otherwise every home owner hoping to sell could just put a couch in front of something they want to hide.

Again, I would call your realtor and ask for some guidance. It's very possible that you just have to cut your losses and move forward. But it is worth at least talking to your realtor first.

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answers from Los Angeles on

I would think your suit would be against the inspector. When we bought our home the inspector climbed under the house into the crawl space. So as for not moving stuff I don't get that. Did you have a final walk thru as to the rotting boards, etc, that the seller was to address??? If you accepted it without checking to see if those things were taken care of then I'm afraid you may be s.o.l. Sorry :(

1 mom found this helpful


answers from Tampa on

Why in the world would you close on a house that had things that were not fixed as promised? Or at least have an escrow account that contained the money from the seller to fix these things. Now that you already closed, you would be fighting an uphill battle. The seller has no more incentive to work with you. The burden of proof would be on YOU to prove everything in a lawsuit. Do you really have the time and resources to do this?

1 mom found this helpful


answers from San Diego on

When we sold our first house a home inspection turned up an unbelievable habitation of hundreds of birds in our attic. We had absolutely no clue. Being our first home sale, my husband and I were clueless as to the liability. Our savvy real estate agent insisted that it be disclosed and for good reason. She had dealt with another sale in which a gigantic attic bird nest was not disclosed to the new sellers and it FELL DOWN INTO THE HOME, causing tens of thousands of dollars in damage. The previous owners were on the hook for the damages (I don't remember if they knew of the nest or not).

As an animal and nature lover, I was absolutely torn apart by the fact that the only viable solution was the exterminate the birds in our attic and close up the area that they had entered from. I believe we had to pay $2k out of pocket for this. Our agent (a family friend) much later disclosed that the poor gentleman who was paid to do the task had almost had a mental breakdown after cleaning out the dead birds and had to take time off from work. Anyway, that is more info than you asked for, but an anecdote about someone who did sue and won.

In the two houses that my husband and I have sold, we've disclosed absolutely everything we could think of and then some!

1 mom found this helpful


answers from Chicago on

First, your problem is BAD: Realtor, Inspector, & Attorney. You should talk to a different Attorney to get advice.

I've been in the mortgage field for over 20 years. Your assumption that the seller/buyer communicate is absolutely false. That just tells me you have a lazy Realtor and Attorney.

You should have negotiated at the closing table regarding the gutters and rotten boards. The title company would have put money in escrow until the work was satisfied. Your Realtor and Attorney should have walked you thru this option.

I have been in hundreds of closings, I'm telling you you had a bad inspector, bad Realtor and bad Attorney. You can also sue the Sellers Realtor. Weigh the costs of fixing this yourself and see if this is a learning lesson or something you should pursue in court.

If you decide to talk to a new attorney, I have one that I would highly recommend.

1 mom found this helpful


answers from Miami on

I see you're in the Chicago area. I saw another poster here who said her entire neighborhood has water problems, and for some reason, she thought that this made it 'normal' to sell a house with water problems. I seem to remember her saying her real estate agent said it would sell just fine.

I was quite shocked, frankly. As a potential buyer, that just means to me that I wouldn't want to live in that neighborhood as the whole area has water issues.

Then she wrote that they have a problem with the foundation. Apparently, they aren't looking to sell anymore. Perhaps they themselves hired a home inspector so that they could fix potential problems and got the bad news. I don't know. But, they would be in for a big liability if they didn't disclose the water and foundation issues. Even after they complete repairs, they have to disclose and tell what they did to prevent the problem from happening again...

I do think that your attorneys made a big mistake by not taking the money out of the settlement to fix these issues, rather than trusting the seller to do the work. That's what I have done when closing on houses that had "small" issues. The only thing I got dinged on was a heater that had a part replaced and the inspector thought that this solved the problem. When winter came (I bought in the summer), the exact problem happened again, and we realized that there was more to it than the issue of the part. The furnaces and A/C units were 20 years old, so we decided to replace them all so that our units would be energy efficient. That's a good selling feature as well. And I also knew that I wouldn't have to disclose a fire hazard for my furnace since I replaced the furnace...

You have to realize that not everyone is as willing to acknowledge a problem and fix it as you and I are. The people you bought the house from just flat out lied, plain and simple. What you can do next time you buy a house is hire your own inspector away from your realtor and go through the entire house with him. You should be at the inspection asking questions and getting answers about the systems of the house you look to buy. It's more expensive this way, but could save you a ton of headaches.

As far as litigation is concerned, I have never dealt with that so I have no advice on that. The guy you're talking about sounds like a total jerk-off and I am sure that he would give you a whole lot of grief. If I were you, I'd mitigate all the problems yourself, keeping very good records as to the extent of the damage - documentation all the way around - and then decide if you feel it's worth taking him to court.

So sorry...



answers from Oklahoma City on

The attorney's that did the agreement should follow through on this. It wasn't completed so there shouldn't be any charge. A letter from an attorney often holds more weight than just a call or letter from someone else.

My friend wanted to put an addition on her home. The builders started digging for the basement part. They found a septic tank. The house had been sold as being hooked up to city sewer from the last 3 owners. Each one had to go and sue the previous one for not disclosing the sewer system was a septic tank.

The city also had to refund all the money the 3 previous home owners had paid for city sewer too. So it actually worked out for most of them. The one owner who had originally sold the home as hooked up to city had purchased it as septic tank but had not really known what that meant. They had to refund money to the next one. I don't know how much. I am sure it was pretty minimal.

But my friend found the issue and didn't get sued by the next person who bought the property. Odd situation for sure.

SO I know it depends on who you have in your corner and how they'll represent you and get this issue taken care of.



answers from Santa Barbara on

Yes, my friend's parents did sue and they won. I can ask her more info. They bought a house and started to remodel. The contractor (or team member) noticed huge water marks under the carpet (not sure about the exact fact finding). Anyway he told the new owners there is no way this was unknown to the sellers and there was a lot of damage. Not sure why the inspector did not notice, but the inspector can only do so much as Tara R said. The house was sold in CA.

I think if you signed an as-is agreement you may not have much of a chance.



answers from Los Angeles on

If you can prove that the problems existed prior to your purchase, then you should sue. You need a repairman to come up with a valid quote - maybe even get two or three bids so you can prove that it's a fair price. You need a GOOD attorney who specializes in real estate law and can represent you in court.
So sorry you're going through this. What a headache.



answers from Phoenix on

Contact the Real Estate Board and the Attorney Generals office. They will best a able to direct you on what your rights are.

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