A friend of a friend just bought a house. They seem dumb. Apparently, there were outlet type air-fresheners with the built in fans going all the time during the showing.
Long story short, the carpets, pads, and some of the floors need to be replaced. Seems they smell like dog pee. The inspector mentioned something about having to replaqce the roof, again, not a smart buy IMO. The inspector was either fooled by, or chose to ignore the little air freshener trick.
My question is, "If one intentionally masks an odor that might reveal damage to carpet, carpet padding, and possibly floor boards, does the buyer have any recourse?
All of the “how to sell your house” advice always mentions that one should bake cookies or light candles or otherwise make pleasant scents for people during their viewing… of course your question relates to purposely hiding smells. That’s another complication – lots of pet owners don’t realize that their houses smell. Honest. Kind of like Indians don’t know their food stinks. Or that fat lady at work doesn’t realize she uses way the hell too much perfume.
Since I can’t really provide an answer, I can provide a tip – look up full disclosure regulations for your municipality for anything concrete. I’m of the opinion based on just what you’ve said so far that your friend is SOL, though.
I am not your (or your friend of a friend’s) lawyer, and all of this depends on the state (and possibility the locality) .
The general rule in the US remains caveat emptor, let the buyer beware. Unless there was some sort of disclosure requirement, there is probably no recourse.
Under US federal law, on almost all residental sales and rentals, the owner is required to disclose any reports or information the owner has regarding the use of lead-based paint or lead-based paint hazards at the property. The owner is also required to give the buyer or the renter a 10 day period to test the property for lead-based paint hazards.
Many states and some localities have disclosure requirements on residential sales (much less commonly on commercial sales). Some jurisdictions require all sellers to fill out a specified disclosure form, and if there was a misstatement there, the buyer may have a claim. In New York, however, sellers have the option of either filling out the state disclosure form, or giving the buyer a credit of $500.00 on the sale at closing.
I routinely advise clients to avoid giving the buyer the form and giving the $500.00 credit instead. On most residential sales in New York City and its suburbs, the relatively small $500.00 cost relative to the purchase price makes it a cheap cost compared to the posibility of future claims or litigation regarding potential errors on the form.
Around here, at least, inspectors are looking at the building’s bones - is the foundation OK, is the house properly bolted to it, is the electrical system not sparking at anyone walking past, does reasonably clear water come out of the faucet, is the basement full of fluffy clouds of asbestos - that sort of structural stuff.
Ugly paint or pee-soaked carpet won’t be on their checklist. If they (heh) stumble (ick) across a wet spot on the carpet, they may note it, but I wouldn’t expect them to be looking for it.
If I was a buyer, I’d rather have the form. I’d be worried they were hiding something that would be on the form. Have you ever had a buyer request or require the form instead? What happened? (You can be not my lawyer too.)
The previous homeowners of the house we live in now intentionally covered up many flaws. They re-sealed the basement walls, so they looked perfect when we saw them (and apparently fooled the inspector) but within a couple of months, the sealant was flaking off in huge patches.
They claimed in their disclosure that the basement had never leaked or flooded, but gave us a copy of the inspection report from when THEY had bought the house, which clearly indicated standing water in the basement.
They re-painted the ceilings to hide where the roof was leaking-- their inspection report had noted it. They lied, and we can prove it, but what does that do?
I suppose we could sue them, but what we would stand to get out of it would probably not be worth the bother.
Interesting question: you can pretty much accept that any older house (>40 years0 is going to have flaws. if you take an even older house (>150 years) you are gauranteed to have flaws. The only thing you can do is perform a thorough inspection. it rteminds me of one of those “This Old house” episodes-I think it was a 90+ year old house in berkeley, CA. The inspection found all kinds of problems-rotten sills, porch not built to code 9and ready to collapse), plus a water heater that was illegally installed 9it was vented INTO the house). I would RUn away from such a house-unless it was selling at a huge discount. The worst thing is owners who cover up water/rot damage. You start remodelling, and a wall collapses into dust 9its been rotting away for years). thats when home ownership isn’t fun!
My inspector offered a money-back guarantee on the inspection - if he missed anything he should have caught, he’d have given me my $250 back. Not much, but it’s something.
But Lissa, your examples aren’t lies. Fresh paint is just something you do when you sell a house. If you were to ask, “has the basement ever flooded” or “the ceiling ever leaked” and were told no, then that’s a lie. But then it’s your fault for not ever having asked. The point that something is an out and out lie often triggers liability for disclosure. Other than that, caveat emptor.
“There was a time when caveat emptor, or “buyer beware,” ruled in the home buying arena. The burden of discovering property defects was placed wholly on the buyer. In recent years, there has been a move away from caveat emptor. Instead, many states are requiring sellers to disclose property defects when they sell. In some states, “seller beware” is now the more appropriate admonition”
“Even if your evidence isn’t ironclad, a sharply worded letter detailing what you found might be enough to persuade a grudging seller to fork over some money. If diplomacy doesn’t work, the next step is to take the seller to court.”
“The Home Inspection will not be able to reveal information on conditions such as those hidden behind finished walls, beneath carpeting, behind or under personal storage items, at inaccessible areas, or conditions that have been masked, hidden, or intentionally concealed”
“When selling your home, you may be obligated to disclose problems that could affect the property’s value or desirability. In most states, it is illegal to fraudulently conceal major physical defects in your property such as a basement that floods in heavy rains. And states are increasingly requiring sellers to take a proactive role by making written disclosures on the condition of the property.”
Va. Code Ann. § 55-519(A)(1) (Michie 1999). However, an owner of property may not intentionally conceal known material defects and agree to sell the property knowing that the purchaser is unaware of the defects. See Van Deusen v. Snead, 247 Va. 324, 441 S.E.2d 207 (1994). The Act specifically preserves all remedies at law or equity otherwise available against an owner in the event of the owner’s intentional or willful misrepresentation of the property’s condition. See § 55-524.
I think you’d have trouble arguing that they concealed the carpet damage, since the carpet was in plain view.
We can’t even say with certainty that the seller even knew that the carpet/floor was damaged beyond repair. They were living with it in that state, weren’t they?
Rules about disclosure are local issues, but I doubt that they cover factors that are in plain view during a typical showing. A flooding basement or leaky roof won’t often be visible in a showing, it’s not reasonable to think a buyer would find out about it until they move in, so these things are often covered in disclosure.
Of course, the NY disclosure rule is really a no-disclosure rule, since no seller in their right mind would disclose jack. $500 is nothing compared to even a single problem cropping up with the property after the fact. ZenBeam, the buyer always wants the form, but the decision is up to the seller, which is why the buyer never gets the form unless the seller is a bonehead.
In Connecticut, the corresponding credit is only $300.00, and my real estate attorney also advised me to pay the credit instead of supplying the disclosure form.
However, you are required to supply the disclosure form prior to receiving an offer from a potential buyer. And as my real estate agent pointed out, not supplying the form makes it look like you (the seller) have something to hide, possibly driving away potential buyers.
Also, even if you don’t supply the form, can’t the buyers still go after you if there are known problems with the house, and you don’t disclose them?
In any event, there were no significant problems with my house that I was aware of, so I supplied the form.
Yes, that’s exactly what they did-- on the disclosure form they gave us, they said that the basement had never flooded in the past three years. After we bought it, they gave us the disclosure form that the people they had bought it from (less than two years ago) gave to* them*, which clearly said there was standing water in the basement, and that it flooded during heavy rains. When they sold it to us, they put the sealant on the basement walls, and then claimed that it had never flooded.
They also said that there were no leaks, when the previous disclosure form listed several. They just painted over the ceilings and claimed that the roof had no leaks. (Really, I’m just pissed that they lied on this one–the actual problem was very easily fixed. Not so with the basement.)
Regarding lead-based paint; we bought an old house (ca 1923). It is certain that the walls carry lead based paint. Whta we did was this; when we attempted to strip the old wallpaper, the plaster started coming off. the solution was to cover the walls with new sheetrock. can i assume that the lead paint now is sealed away and presnets no hazards?
Unless the walls are constantly shedding dust and flakes, if you don’t have small children, the lead probably shouldn’t be a problem.
Generally, lead poisoning comes from ingesting the dust or paint chips. (It tastes sweet, so small children will sometimes eat the chips or lick up the dust.) An adult probably shouldn’t be harmed by what little dust is coming through the walls, especially if you covered them as you described.
However, I would inform any potential buyers that it still existss, but note that it’s covered.
I felt the same, because the old paint is covered by the old wallpaper 9which we did not disturb, and the walls and ceilings are new sheetrock (painted with titanium-based paints). So, do I have to tell a potential buyer about this?
Yes-- you know that it exists. To say that it doesn’t would be a lie. However, you can qualify your statement by telling them the measures you have taken to assure that it doesn’t contaminate the home.
Lissa - My friends bought a house in Ohio this past summer, and ran into the exact same problem. Nice finished basement (finished with drywall and wiring - it wasn’t done). They have a signed disclosure stating the basement had never had water problems. The basement did indeed have water problems, which were uncovered when it flooded in October. And then the crumbling walls were found behind the drywall.
They are in the process of suing the previous owners for the $12k it took to rectify the problem and make their basement dry. The case isn’t settled yet, so I don’t know if they will win (they have neighbors willing to testify that the previous owners knew of the water problem) so it’s worth you looking into suing the previous owners if you have that signed disclosure.
The buyer could make receiving the form a part of their offer. Then it’s up to the seller to either reject the offer outright, counter-offer with no form required, or provide the form. I’d be really suspicious of that middle option. But then, I’ve never lived where that form was an option.
