Every homeowner knows the fear of dealing with home defects discovered after the sale. Finally, closing the sale on your new home is a fantastic feeling. But it can quickly turn bittersweet if you notice an undisclosed and expensive structural problem afterward. You’ve probably moved some of your stuff in already and started thinking of a new floor plan, only to realize that everything will be set back by a few weeks because you have a leak in the bathroom that your home inspector overlooked.
Admittedly, this is highly stressful. However, lucky for us, there are several ways to deal with this problem and things to do to make it as painless as possible, if not completely resolve the issue.
What is a material defect?
The first thing you have to do is determine what kind of defect you’re dealing with. And in other words, you need to decide whether or not you’re dealing with a material defect. This term would encompass anything that could pose a risk to you and the other inhabitants of your home. It also usually applies to material defects that impact the home’s value. This essentially points out that you may have been purposefully kept in the dark so that you would pay more for the home.
Either way, material defects give you the most to work with in a legal battle. Remember that if you discover that a material defect hasn’t been disclosed to you before concluding the sale, your first step is to protect your family and possessions. For example, if you notice that the ceiling in a room is weak or filling with water from a hidden leak, you want to move all your stuff out of that room right away and inform everyone in the home not to go in the room. Experts from Professional Movers Canada, for example, recommend using a nearby storage unit to keep all that furniture and other essentials safe until things get sorted out.
Can you take legal action?
After discovering a severe defect, your next question will likely be whether you can sue the previous owner for not disclosing it. The answer to this question highly depends on the specifics of the situation you find yourself in. And in most cases, a better question might be, “Should you take legal action?”. Firstly, not every defect you discover will be grounds for a lawsuit. This means that scratches on the hardwood the previous owner’s dog left won’t hold much merit for legal action. Secondly, there are a few things that have to be true for you to go through with legal action:
- All of the home defects discovered after the sale have to have been in the home before you closed the sale;
- The damages must be something you couldn’t have noticed by just viewing the home. For example, a significant crack in the wall wouldn’t be accepted;
- You need proof that the defect was purposefully hidden or undisclosed.
The biggest issue with legal action is that it costs a lot of money, energy, and time and doesn’t guarantee that you’ll win. Generally, it’s best to leave lawsuits as a last resort. For example, if the previous owner is being uncooperative after you’ve reached out. If there’s any other more creative way to handle this, it’s likely the better option.
You’ll need solid proof
If you do have to resort to legal action, you must show solid proof that the previous owner was actively covering up any defects you found and that they are responsible for them. An example of what you should look out for and the document is a water stain suddenly appearing on a recently painted wall. Another example would be taking a picture before and after if you notice that there are cracks in the basement that have been covered up with paint. The “before” picture should show that the crack was hard to see when painted over. The “after” picture should show the size of the crack after the paint has been scraped away.
These examples should give you a general idea of what you’re looking for in terms of proof. Anything that shows that serious effort was put into hiding the fact can be of help. Remember to document everything properly, after which you can contact an attorney and have them help. You decide whether to go forward with a lawsuit.
Who else can you contact?
As mentioned, lawsuits should remain a last resort in these situations. It’s better first to see whether you can resolve this through other people and methods which require less time and fewer resources. The first three people on your mind should be:
- The seller,
- The listing agent,
- Your home inspector.
Whom you should contact mainly depends on where you are in the country. Depending on the local regulations, different people will be responsible for working things out for you.
The seller
If you don’t have any reason to believe that the seller actively tried to trick you and remember having good communication with them, your best bet might just be to get in touch with them and try to figure everything out together. Although disclosure laws require the seller to disclose every issue they know about, that doesn’t mean they must seek out problems actively. They might be just as surprised as you are. Either way, you might be able to negotiate a satisfactory solution for both parties with them.
The listing agent
Certain states hold the seller’s listing agent responsible for this situation. However, you would have to prove that they actively withhold your information. This is very unlikely, however. A much better option would be to encourage open communication between you and the agent. See whether they can help you figure out a way to resolve this situation as efficiently as possible.
Your home inspector
If both the seller and the listing agent were completely unaware of the home defects discovered after the sale, your home inspector may be liable for the defects. In this case, you should review your home inspection report again and see if you missed anything. If not, it may be smart to contact a lawyer.
Commonly undisclosed defects
If you found one issue after closing the sale, at least a few other things have likely been overlooked. You can check for other problems by simplifying the unpacking process after you’ve moved in. You should do it one step at a time, and as you’re slowly taking things out of boxes, check for the following items since they are the most common home defects discovered after the sale:
- lead-based paint,
- radon leaks,
- asbestos,
- roofing problems – check for this from inside the attic,
- improper ventilation,
- water damage,
- foundation issues,
- heater issues,
- electrical issues,
- bad sewer lines,
- plumbing issues,
- termites,
- rotten wood.
Prioritizing is key
It’s essential to be able to prioritize. If they seem friendly and cooperative, you can try to reach some sort of agreement with the seller. For example, if you plan on investing in a higher-end home security system or redoing the floors, they can cover those expenses while you deal with the defects yourself. This way, the seller won’t have to remain in contact with you since they’ll just give you the money you need and move on while you cover more variable expenses.
On the other hand, if you’re dealing with one or more small, easily fixable home defects discovered after the sale, it may just be best to bite the bullet and fix them on your own. There’s no need to waste time and money on anything more serious. Of course, if those options seem like they wouldn’t work or you are entirely confident that the defects you found were purposefully hidden, you may have to contact a real estate attorney. Try to be creative and see what works best for you.