Whirlpool tub isn't meant to be shower

Q. We just bought a remodeled older home. Our home inspector found no problems with the whirlpool tub and shower setup, but since moving in we are having problems with drainage around the tub rim. The tub has a raised rim that rests on a tiled deck. While showering, water builds up on the deck tiles to a depth of nearly half an inch, with no way of draining into the tub. After each shower, we have to mop this up with towels.

We are afraid that water may be leaking into the space below the tub deck, but we cannot check this because there is no access door for servicing the whirlpool motor.

The tub was apparently not designed for use as a shower, but a shower head was installed, and no one disclosed the drainage problem. When we asked our home inspector about this, he said, "I don't know what to tell you." When we asked our agent, she said her company is not responsible. The listing agent spoke to the seller, who says she's not paying to fix anything. We've talked to five contractors, and each one says the deck needs to be rebuilt so that it drains into the tub. We've also learned that the bathtub and whirlpool system were installed without a permit when the home was remodeled. Who is liable for all this, and what should we do?

A. Here's my take on this situation:

• Unless the seller never used this shower, she must have known about the ponding on the tub deck and would therefore be guilty of withholding disclosure of a significant design flaw.

• A home inspector who was paying attention to details should have noticed the potential for ponding on the tub deck, but this could have been easily overlooked in the course of a brief shower test. However, the inspector definitely should have disclosed the lack of an access to the whirlpool motor. That access is a legal requirement. Without it, servicing and inspecting the whirlpool equipment is not possible. Home inspectors typically report the lack of an access as a significant defect and recommend that an access be made prior to the close of escrow to enable evaluation of the system. If the inspector overlooked this issue in his report and made no corrective recommendations, then he needs to say a lot more than "I don't know what to tell you."

• The real estate agents probably had no knowledge of any of these problems and therefore cannot be expected to have provided disclosure. However, if your agent recommended the home inspector, there is one question the agent needs to answer: "Is it your understanding that this home inspector is the most experienced and most thorough home inspector in the area, or are there other inspectors with reputations for greater thoroughness whom you might have recommended to your client?" Some agents avoid the most thorough home inspectors for fear that they might "kill the deal."

The bottom line is this: The seller appears to be liable for nondisclosure; the home inspector appears to be liable for negligence; and the agent may be liable for faulty referral.

• 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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