Any Litigation lawyers out here?

Factual Questions
1

I’m looking for an informal opinion about a real estate matter my wife & I recently experienced.

To make a long story short, we purchased our house a few months ago through the use of real estate agents.
Our agent as well as the seller’s agent both work for the same company.

One of the many features the listing sheet stated was
“Newer Windows.”

After closing the deal and moving in, we have come to learn that every single window in the house is original to the homes construction, hence they are all 20 years old.

I have called a few lawyers to inquire about any legal action and they all told me I am “pissing against the wind” because trying to get past “BUYER BEWARE” is almost impossible.

They all ask the same questions:

“Well, what’s wrong with the windows?”
To which I reply “Nothing”, but what does this have to do with anything?

Then they ask:
“Well, um, er, what did the home inspector say?”
To which I reply:
The home inspector was not privy to information on the listing sheet, and was not aware the windows were all supposed to be newer.
Again, what does this have to do with anything?

I had one cocky lawyer tell me he has successfully defended against these types of cases in the past, and I have no chance of winning, but he will gladly take my retainer and “give it a shot”

The problem is the windows all look new on the inside and out, and in one of the sheds on the property, was a pile of old windows (which we falsely assumed were the original ones. From the house.

Do you think we have a case here?
One firm told me to give them $500, and they will see if there is anything they can do.
I don’t want to just piss away $500 only for them to say “Gee, sorry, we looked at it, and there’s nothing we can do?

I found out the windows are made by Anderson and they are good for approx 30 years.

I’m considering suing the real estate company in small claims court where the limit is capped at $10,000.

Any ideas and suggestions on how to approach this?

Thanks

2

Sorry, this is too much of a specific, real world question for me to answer on an internet board. Said another way, it’d be providing legal advice, and I’m probably not licensed in your state.

I will say that if you were in my state, and came in to my office, I’d ask you some of the same questions that you’ve been asked by the lawyers you’ve visited. Questions about the harm (damages) you’ve suffered are indeed relevant.

Normally, at this point, I suggest seeing a lawyer licensed in your state, but it sounds like you’ve already done that.

(Gotta go. I think I hear an alarm going off.)

Good luck with your issue.

3

Do you have a case? Perhaps, if what you say is true. A viable case? No, unless you can show obvious damages, etc. The only way you are going to be able to proceed other than pro se is to pay an attorney for his time to investigate and prosecute same. Attorneys aren’t charities, and for one to ask you for $500 to take a look at this thing is actually quite a bargain. “Piss away” is an unfortunate and inaccurrate statment on your part regarding attorneys, you expect them to work for free? Do you ever work for free? Unless they are leaking, give it up, caveat emptor as a phrase hasn’t existed for millenia for no reason.

4

Yes, there are implied warranties, but that doesn’t change my answer. Christ, they aren’t even leaking!

5

Sadly there exists this notion that money spent on lawyers has a higher probability of being wasted than money spent on, say, a travel agent. Another most unfortunate preconception is that the amount of money that requires to be paid to lawyers is higher than the amount that needs to be paid to people who work in other trades and industries.

A counter-example perhaps, to set beside your own, of a belief, which takes a variety of verbal forms across perhaps all of the world’s cultures (and finds expression most vulgarly in the form “Lawyers screw you”), that has existed for millenia for no reason?

Send me a couple of hundred and I’ll read your email and give you my preliminary thoughts.

6

It’s significant because you can’t fight every battle in life. If somebody wrongs you, but the harm is minor, it’s often best to just let it go.

I don’t know what the law is, but when a lawyer says “you’re case is weak but if you pay me money I’ll take a shot,” there’s a good chance he’s telling the truth. What possible incentive would a lawyer have to say something like that unless he is honest and decent and believes the case is weak?

It sounds to me like you are having buyer’s remorse, which a lot of people who bought recently are having.

7

What did the agent say when you asked, “Newer than what?”

8

Quite frankly the agent could have seen the same stack of windows in the shed and seen the excellent condition of the existing windows, and made the exact same assumption you did, and that’s what he entered on the listing input sheet. The description wasn’t entirely accurate, but your demonstrated harm is negligible, and it really does seem like you’re kinda-sorta trying to play a game of “gotcha” at this point, especially since you’ve more or less indicated

It seems (IMO) pointlessly punitive and somewhat grasping given the facts you have related.

9

[QUOTE=lskinner]

I don’t know what the law is, but when a lawyer says “you’re case is weak but if you pay me money I’ll take a shot,” there’s a good chance he’s telling the truth. What possible incentive would a lawyer have to say something like that unless he is honest and decent and believes the case is weak?

QUOTE]

Thanks for the replies.
The reason I’m a little untrusting is because I live in a small town, everyone knows each other, and the business community is small and intertwined.

It does play on the back of my mind that the lawyers I spoke to are friends / business colleagues of the big real estate firm involved, and they don’t want to bite the hand that feeds them.

Before some of you start gasping and choking at the implication, let me remind you that not every lawyer out there is as pure as the winter’s snow, and there’s a reason some people are untrusting.

As far as the implication that I’m a cheap ass by not paying the $500…

So you’re telling me that I should first “pay” to tell the lawyer my problem, and after he listens for an hour he can say “Sorry I can’t help you, that will be $500”

Yeah sure, I can see doing that all day long… NOT!

10

Isn’t that essentially what happens when you go to the doctor sometimes?

Anyway, I think what most people are saying is, given your observation that the windows “look” new inside and out and there’s apparently nothing wrong with them (unless they’re those drafty old single pane jobs from way back when), what you really have amounts to a disagreement with your real estate agent over the meaning of “newer”, and that the best course of action would be to drop it and enjoy your new home with it’s perhaps slightly less than newer Andersen windows. Which are fine windows, BTW.

11

What do you feel your damages are here?
Seriously, how much money are you out?
I’m thinking this isn’t the kind of case you’re getting punitive damages on, so all you could conceivably get would be the real economic damages.
Let’s say the house is 50 years old.
Let’s say the average windows in your community are 20 years old.
What is the economic difference to you between 20 year old and 50 year old windows?
That amount would be all I’d be inclined to award if I were a judge in your jurisdiction, assuming that I could be persuaded to rule in your favor at all.
Is that amount even more than the filing fee in your local civil claims court?
If so, is it also worth a couple of hours of a lawyer’s time?
Seriously, I can’t personally imagine your damages here being much.
I also feel like you should have discovered this prior to the sale. I assume all unverified statements by all real estate agents are lies. If I have ANY apprehensions about a purchase, I settle the matter before I lay my money down.

Not a lawyer. Not your lawyer. If you think you should actually trust the advice of strangers on the Internet in a substantial legal matter, you’re insane.

12

IANAL, but I am a real estate agent.

This is the partially listing agent’s fault. Whether he was misled and didn’t check up on the facts, or whether he made an assumption about the windows that was wrong, it’s at least partially his fault that you misunderstood. It’s also partially your fault. I tell my clients every time to ASK QUESTIONS and get as much as you can in writing.

That said, there’s not a whole bunch you can do about it. Should you pursue, the agent and former owners will point the finger at each other and no small claims judge is going to sit through that BS session if they can help it.

Also, the description of “newer” means squat. As Saint Cad said, “newer than what”? How new were you expecting them to be? What percentage of new are you going to ask a judge for?

If you had purchased the property and the windows were leaky, drafty, and broken, you would have a case. Finding out they’re not as new as you thought, with no attendant damages, isn’t going to take you very far.

I think you’re probably stuck with your not newer windows that don’t leak.

13

Might make for an entertaining episode of The People’s Court.
Kinda boggles my mind that you are newly moved into a new home, and have decided to be pissed about your new-looking, perfectly functioning Anderson windows. Makes me think the rest of your life must be humming along pretty smoothly.
Seriously - how much less do you think you would have paid for the house if they had been accurately listed as new-looking, perfectly functioning Anderson windows original to the 20 year old house?
IME - Anderson (or Pella) windows were usually considered a positive selling point.

14

CrazyFoo, there are two kind of litigation lawyers, those who charge by the hour and those who charge on a contingency basis (i.e., they get a percentage of the recovery, but only if they win). Lawyers of the first type will expect to be paid for evaluating the case, even if they advise against pursuing it. That’s fair. You’re using their time. The latter won’t expect to be paid for evaluating your case, but they generally only take strong ones. I doubt you’ll find one willing to take yours, but you’re certainly entitled to try. If you can’t trust the ones in your town, try the next town over. Or ask friends for a referral.

15

That might in fact be true, but it doesn’t change the fact that you have a shitty case.

–Cliffy

16

Not to pile on CrazyFoo, but your damages are largely academic, and barely that. For purposes of illustration, you can, I suppose argue that you were intentionally misled. However, as SaintCad pointed out, the windows are “newer than what?” Time? Formation of the Earth? From that same line of comparrison, the house, too, is newer, isn’t it? Do you see where we’re coming from now?

Mr. Slant has provided a type of analysis that at least I was taught in law school. However, my cases had clear fact patterns of mistake, lying and deception (i.e. fraud). We even dealt with cases of houses being painted sky blue versus baby blue. While these cases did indeed have more than nominal damages, your issue seems to be lacking that clear element (fraud, or even a mistake for that matter).

Again, this is not legal advice, and this isn’t even a formal opinion or analysis. IANYL, you are not my client, I’m not saying that you’re going to win or lose or anything. I’m merely pointing out how some in the legal profession are going to view your relevant set of facts.

17

The word “newer”.

While I’m confident some of you fancy lawyers out there could try to argue the word newer means anything you want it to mean, I would happily take my chances to argue this point in a court of law in front of a judge who is reasonable, and doesn’t play words games, which are purposely meant to deceive and manipulate like some of you seem to.

Newer than the earth’s crust? Give me a break. If after 7 years of law school this is the best you can come up with, please let me know what firm you work for so I won’t mistakenly retain you.

This is precisely the reason why some in your profession have a bad reputation for being sneaky, deceitful, and bending the truth.

It is a well known fact that real estate agents routinely use the word “newer” to describe something which isn’t quite “brand new”, but has been installed in the last year or 2.

The word newer gives an implication “it’s not brand spankin’ new, but it’s new enough that you don’t have to worry about it.

The word “newer” when describing a feature of a home, be it furnace, windows, roof, what have you, these words give an implied value to a home and help to justify the asking price.

Making such a claim when they are not true is misleading and attempts to put the property under a different light than if these words were not present in the first place.

Take two identical homes which are 20 years old.
List one with “newer” windows, and list the second one with “original” windows, or don’t even mention the windows at all.
Which home do you think will generate more interest?

This is my point.

Newer to most people means “recently installed”

I find it interesting that some of you have the sentiment that for some reason I’m the bad guy, or I’m the one at fault here.

If I sold you my pick up truck for $20,000 and I said there were 12,000 miles on it, would you be upset if after you got it home you discovered the odometer said 120,000 miles?

Even though the engine ran great and problem free, could I say “oh, don’t be so sensitive, enjoy your new truck and don’t sweat the small stuff, life’s too short!”

As I said, I really do appreciate all the replies, even though I don’t agree with some of them.
Thank you.

Sorry if I seem a bit short, there’s a lot more to this than what’s in print.
This is only the tip of the iceburg.

18

Well cripes, that changes everything. What relevent facts have you omitted?

19

IANAL, but it seems to me that if you might have a case if you can demonstrate this understanding of the word “newer.” Can you point to any surveys or real estate literature where the word is so defined?

Another thing to look at is the useful life of the windows. If they need to be replaced after thirty years, and you based your purchase price on an understanding that they were only two years old, you could argue that you have a loss equivalent to 18/30 of the cost of replacement windows. As I said, though, I’m not a lawyer, and this might be nonsense.

I do agree with those who suggested that the $500 retainer is not unreasonable, given that the lawyer will need to do some research.

20

Yup. Now I’m sure I hear it.