And just when you thought being a homeowner was fun …

by Chris Markham. 0 Comments

So you bought your new, or, as I like to say, new-to-you house, and everything is perfect.

The mortgage is affordable, and not one of those adjustable rate time bombs, or, heaven forbid, another really exotic loan that has an interest rate based upon the number of the winner in the seventh race at the Preakness.

You did all the right things to get to that point, too. You interviewed a few Realtors and mortgage brokers and selected the ones that you trusted and that had your best interests in mind.

You had an attorney review the sales contract and a few of the preliminary closing documents to ensure everything was on the up and up. You had your closing at a title company that did a thorough job at reviewing and explaining the documents to you before you actually signed them.

Finally, you had a home inspector inspect the property to make sure everything actually worked and was in good working order.

But suddenly, something doesnt seem right. Late at night you hear munching sounds in the walls. The wood floors creak a little more often that what they did when you were moving in. There are a lot, and I mean, a lot of little flying things around the place. Stuff in the attic gets damaged. And the basement really smells.

Like most homeowners, youll hire the exterminator, the roofing guy and the mold professional to come over and give the property the old what for. Then you discover that there are a ton of termites in the property; or the roof leaks; or the electrical system is shot; or the basement does indeed have a flooding issue. So what do you do?

Well, if youre like most people in this economy, staring down a whole bunch of bills and a job market thats terrible, you panic. You cant afford to fumigate, fix, seal or replace what needs to be fumigated, fixed, sealed or replaced. Thus, youre reduced to looking for alternate ways to pay for the repair such as suing the former owner of the house. This is not as rare a strategy as you might think. Many people are trying to do just that as theyre realizing there may be some serious problems with their purchase, and little or no means to pay for them.

This is a long, hard road to hoe. You see, Maryland Law requires a Disclosure or Disclaimer form with just about every real estate contract. Sellers can either disclose a great deal of facts about the operation, maintenance and condition of each and every major system on the property, or they can disclaim basically check a box and state that the property is being sold As Is.

For the most part, the majority of real estate contracts are disclaimed. Frankly, it takes far too long to check every box, go through every system and ensure that the description of each is relatively accurate. Plus, theres little to no liability if you just disclaim, so most sellers do just that.

If your sellers do disclaim, most think that they can go after their home inspector. Maybe, but the home inspectors liabilities in these instances are so low as to be worthless if youre looking to replace or repair a major system.

Thats not to say if theres a big enough problem that the home inspector should have caught it, or you find out that the home inspector never actually made it to your property and phoned the report in, so to speak, that would be grounds to go after them with every piece of ammo you have.

However, if the sellers disclose, you may have a little more in the way of a case. Then, you just have to prove that the seller knew about the problem and willfully, intentionally, knowingly and purposefully misstated the condition of the property on the disclosure statement.

Again, not the easiest road to go down, but that potentially gives you the hope of a remedy down the road.

But, and theres a huge but, any potential lawsuit will take time.

While the case drags on, youll have to pay out of pocket to get the repairs done anyway; if you wait too long, the judge wont be happy that you neglected the problem and now you want the potential defendant to pay for all of the repairs and any other issues that arose as a result of the initial damage.

So, it's safe to say, if you and your lawyer are confident in the case, any recovery you may see after the fact will be icing on the cake.

Christopher L. Markham is a general practice attorney based in Frederick. He can be reached at chris.markham7@gmail.com.

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