Written by Benny L. Kass
Shortly after you purchased your first house, you discovered bats in your attic. You have been quoted a price of $1000 by an exterminator to get rid of the bats, seal up all openings from the roof and clean up the bat droppings on the attic floor. However, before you went to settlement, you hired a home inspector who did not detect the presence of bats, even though he did spend time in the attic looking for roof leaks. Do you have any recourse against either the seller or the home inspector, or both?
Because the real estate market has become more active in many parts of the county, people are buying houses under pressure, only to find out later about all the problems in the house.
When you learned about the problem, you confronted your home inspector and he told you this was not within the scope of the home inspection process. Accordingly, he claims he was not responsible for any failure to discover these creatures. But even if that is a correct statement, how do you know the inspector was not, in fact, responsible? Did he disclose this information to you — up front — before you hired him to inspect the property? Or was the disclaimer (if any existed) only in the home inspection report which you received after the inspection took place?
Unfortunately, case law in some States limits recovery against a home inspector to the amount of money you paid him for the inspection. However, if you can prove the inspector was negligent, some courts have allowed homeowners to get money judgments against their inspector. Each consumer has to carefully review the facts, reread the inspection report, and consult with a real estate attorney in your jurisdiction.
As I have written many times, litigation is time consuming, expensive, and always uncertain. Furthermore, what are your damages? Clearly you don’t want to spend thousands of dollars in legal fees only to recover the One Thousand dollars that the cleanup will cost.
And you may not be able to recoup your attorney fees. Here in the United States, we follow what is known as the American Rule on legal fees: namely, each side pays its own. There are a few exceptions to this. For example, if there is a provision in a contract (or in a statute) authorizing legal fees to the prevailing party in a lawsuit, a judge may grant such fees.
However, there is a lesson to be learned. When you are considering hiring a home inspector, ask him or her to send you a contract which you can read in advance of the actual inspection. Specifically ask the inspector what is covered — and what is not covered — by the inspection. This way, at least you will know what areas of the house may have to be looked at by someone else.
Thus, it would be your burden to prove in Court that (1) the seller knew about the bats, and (2) intended to deceive you by hiding certain facts from you. This is not always an easy task to accomplish.
You know it will cost you approximately $1,000 to remove the bats and clean up the attic. Although no one really wants to spend this money — and certainly our homebuyer did not plan to incur such an expense — my recommendation is to correct the problem, pay the bill and drop the matter. You may want to send a letter to both the seller and the home inspector, advising them what you discovered, and asking them for a contribution toward the expenses you will have to incur. Furthermore, if your home inspector did not advise you of any limitations on the scope of his inspection, he may be willing to at least give back the money you paid him for that inspection.
There are a number of lessons to be learned from this — for future home buyers:
First, do not rush into buying a home. We lawyers learn in law school that property is unique. That may be true in the eyes of the law, but is not necessarily true in practical terms. Often, potential homebuyers get into a bidding war, with everyone trying to outbid the other, sometimes for a property which might not be worth the price being offered.
Second, under no circumstances do you want to sign a contract without a home inspection contingency. While home inspectors are not perfect, and some make mistakes, it is very important to have a professional walk carefully — and slowly — through every inch of the house you plan to purchase.
Third, make sure you obtain — and review — the seller’s disclosure statement before you go to settlement. If there are any questions — or any discrepancies between that statement and the home inspector’s report — raise your voice before you take title to the property. After you go to closing, it may be too late to object to any problems in the house If there is no legal requirement in your State for a seller disclosure, ask the Seller a number of questions about the condition of the house. Clearly, if they lie, they can be held responsible in a Court of Law.
Finally, on the day of settlement — not the night or the day before — walk through the house and reinspect it again to make sure that what you contracted for is what you will be getting. Even if your contract states that the house is being sold “as is”, this does not mean “as is” as of the time you go to settlement. “As is” is typically interpreted to mean that the house will be conveyed to you in the same condition it was in when you signed the sales contract.
Housing remains the great American dream. Don’t let it become a nightmare.