Who is liable for undisclosed septic problem?
Q. Two days after we moved into our home, the septic system backed up into the tub and toilet. This was a big surprise because the septic had been inspected and approved by a septic contractor before the close of escrow. We called a different septic contractor, and he said the leach field needs to be replaced for thousands of dollars. We called two other contractors for additional quotes. One of them told us he had inspected the system a few months ago and had told the previous owners about the failed leach field, but the sellers never disclosed this to us. Another contractor told us the Realtor was liable for recommending a septic contractor who is not licensed. The sellers have moved out of state, so we can't hold them liable. What can we do to recoup this unexpected expense?
A. Sellers who conceal known defects from buyers are worthy of public disgrace. Unfortunately, your sellers seem to be out of harm's way, having moved out of state, which leaves their agent and the agent's septic contractor as the potentially liable parties. The agent is at fault for recommending an unqualified contractor. The contractor is culpable for issuing false findings, especially if this was done without a license.
To verify whether the septic contractor was, in fact, operating without a license, you should contact the state agency that issues licenses to contractors. Even if the contractor is licensed, there is the issue of the false septic report.
The agent, broker and septic inspector should be notified by certified mail of the current situation. If no one is willing to pay for a new leach field, you probably have a strong case for small claims court. In any event, you should get some advice from a real estate attorney regarding your available remedies under the law.
Q. After buying our home and moving in, we found big, uneven cracks in the concrete slab floors under the carpet. One of these cracks was 1-inch lower on one side. Before purchasing the home, we hired a home inspector, but he did not find the cracks because they were concealed by furniture. The inspector is not liable for defects that are concealed, but what about the seller? Shouldn't he have disclosed these cracks?
A. The seller can only be held liable if it can be shown that he knew about the cracks. That could be difficult, unless the unevenness of the floors was obviously apparent through the carpet. Even with carpet and padding, a one-inch differential is hard to ignore.
Ask your home inspector to reinspect the affected areas, with the furniture out of the way, and have him prepare an addendum to the original inspection report. You should also obtain an evaluation and report from a licensed structural engineer. If you decide to pursue the seller for nondisclosure, those documents will provide a strong basis for your complaint.
• To write to Barry Stone, visit him on the web at www.housedetective.com, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.
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