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updated: 5/8/2011 8:47 AM

Law talk: Evidence of prior damage key to win claim

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Q. We sold a townhouse that was remodeled with a finished basement. The project included the installation of a basement window and a window well. The buyer now tells us water is coming into the basement from the window well. We had a contractor finish the basement and install the window well, all done according to county code. Can we now be held responsible for any potential deficiencies after the closing? The buyers had a home inspection done that did not mention any potential water problems except outside grading.

A. As noted numerous times in this space, generally, for a purchaser to prevail in court against a seller for a defect regarding the purchased property, the purchaser must establish 1) That the defect existed before the sale; and 2) The seller was aware of the defect.

As the plaintiff, the burden is on the purchaser to satisfy the above two requirements. How does the purchaser accomplish this? By introducing evidence that may include marks on walls or floors that have existed for a long period of time; testimony of neighbors, contractors or other parties familiar with the property; or expert testimony.

Also very relevant is when was this defect discovered? If the water infiltration occurred three days after the closing, that would certainly indicate the defect probably existed at the time of closing. If the leaking occurred for the first time three months after closing, this would seem to indicate the problem commenced sometime after the sale.

The fact that a home inspection was performed and the inspector did not note anything regarding the window well would appear to indicate that no evidence of the leak existed at the time of the inspection, obviously a plus for the seller. If this dispute lands in court, the home inspector's testimony that he or she saw no evidence of the leak would obviously be beneficial to the seller.

I would also suggest one or both of you contact the contractor that performed the work and request they come out to determine why the window well is leaking. I would also think you should have received some type of warranty for the work, which may still apply.

Q. My mother, who is in a nursing home, is attempting to sell her house. She cannot attend a closing. What do I need to do once the house is sold?

A. If mom is capable of signing documents, someone can bring the closing documents to her and she can sign. Most sellers do not attend closings these days anyway.

If mom is incapable of signing, it must be determined if she is mentally capable of granting power of attorney to you or another party. If it is determined she is capable of making that decision, a power of attorney can be drafted and mom would be required to sign or mark that document to the best of her ability, acknowledging her desire to grant the power. Once the power of attorney is executed, the "attorney in fact" then has the ability to perform the acts specified in the power of attorney as if the grantor of the power were performing the acts him or herself. These acts would usually include executing documents for the sale of property.

In the event mom is not capable of making the decision to grant a power of attorney or there is serious question as to her capability, someone would need to be appointed the guardian of mom's estate. This generally requires a petition to be filed in the circuit court of the county where mom resides, requesting the court appoint the petitioner as guardian of mom's estate. Once the appointment is made, the guardian stands in the shoes of mom and can generally perform all necessary acts on behalf of mom.

Keep in mind that well before the closing, mom will need to execute the contract. If she is unable or incapable, you should probably start the guardianship proceedings now.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.

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