Real Estate News
The dual-agency letdown
How one's 'greatest asset' became a major liability
By Ilyce Glink
3/13/2009 3:11:00 PM
Q: Two years ago, I bought a home to remodel and planned to move into it. A month after I bought it, I was put on orders and have been in military lodging for the last two years. The end of March is to be my last day on orders, so I have been working on getting the house into shape.
My well has gone dry, and poor construction and easements have set me back. Water problems under the house and in the yard forced me to look at my septic system. It turned out to be cracked, leaking and inadequate.
I sought advice from septic maintenance and installation companies. Two came out but would not touch it; the third told me to not put another penny into this house and seek litigation. The water table is within a few inches of the surface and he claims no septic system invented could fix my yard.
Now I am stuck with an unlivable home and my greatest asset is now a liability. I have gone back and looked at my home inspection, septic inspection and seller's disclosure. Nothing was disclosed. The only Realtor was the listing agent, and I consented to his dual representation. The Realtor picked out all the inspectors. Do I have legal recourse?
A: We're sorry for the trouble you're going through. You now know the value of building your own team of professionals to help you out when buying the largest purchase of your life.
In many states, once you consented to dual representation by the real estate agent, that agent became a facilitator in the transaction. That means the agent merely assisted the parties in moving the deal forward, but no longer had a duty to the seller or to you to represent your best interests.
Your agent picked the inspectors, but did you at any time say that you wanted to pick your own? Your first call should be to the inspectors to determine if they performed proper inspections of the home.
It seems that your primary problem with the home is with the septic system. The next problem is with the source of water for your home. You need to tackle each of these problems separately. You mention poor construction in your e-mail, but didn't specify what was involved. In some cases, poor construction can result in minor cosmetic fixes to the home, while in others it can require structural and costly changes.
You wrote that you've looked at the inspectors' reports and didn't see any problems noted in their comments. You should look over those reports again and call the inspectors to see if they can justify their inspection in light of what you have found at the home.
A professional home inspector would have been responsible for the soundness of the home, while the septic system inspector was responsible for inspecting and reporting on the septic system. If neither of these inspectors performed their jobs properly, you may have a claim against them.
But inspecting homes is subjective. Some inspectors are better than others, but all inspectors should find the glaring issues or problems. Whether your issues are obvious or not is at issue, particularly when it comes to the condition of the home.
Most septic inspectors perform a thorough review of the septic system. But there are times when weather conditions, soil conditions and the time of the year can affect that inspection. But you had three septic inspectors come to the home and all of them seem to have given you the impression that the septic system was a big problem.
Sometimes, physical problems develop after title to a home has transferred from seller to buyer. It can be as simple as an air-conditioning compressor blowing shortly after closing; a washing machine breaking down on the first use after closing; or the sewer line clogging when you first move into a home.
All of these things can happen, but in your case, it does sound as if at least some of these problems were present when you bought the property. If the soil and the septic system are just as they were when you bought the home, the septic system inspector you used should have had the same reaction to your septic system as the inspectors you called in recently. If that's the case, why didn't that inspector find a problem with the system?
You may have a claim against your seller's for failing to disclose the problems with the home. But most seller disclosure laws require the seller to have known of the problem. If you can prove that they knew of the problem, you may be able to sue them and get compensated for your losses. You have to keep in mind that you have a certain amount of time to sue a seller under seller disclosure laws. In some states that time limit to file a lawsuit is as little as one year after closing.
I would suggest you consult with a good, local real estate attorney who can help you determine what legal options are available.