Can I sue former home owner for undisclosed issue

[robp2175]

Jurisdiction

Maine

We just bought and have been living in our new home for about two months. We just recently had an issue where our carbon monoxide detector went off and had to have the fire department come over and air the place out. This prompted us to get a technician to come over the next day and it turns out the furnace had not been serviced in at least four years. What is worse is that the technician discovered there was a leak in the boiler and he had to condemn it. The technician said that anyone who has serviced this boiler would have seen this and it appears to have been there for some time. We were told (I have a text from our real estate agent) that the furnace had been serviced regularly.

Do I have any recourse available to me? Is there anything I could do?

 

[zddoodah]

it turns out the furnace had not been serviced in at least four years.

Serviced for what purpose? What sort of furnace is this (e.g., natural gas)?

What is worse is that the technician discovered there was a leak in the boiler and he had to condemn it.

Condemn it? "Condemn" is a word that has a particularly meaning in the law, and I doubt that some random service tech has the power to condemn anything. Do you simply mean he recommended the boiler be replaced?

The technician said that anyone who has serviced this boiler would have seen this and it appears to have been there for some time. We were told (I have a text from our real estate agent) that the furnace had been serviced regularly.

Define "regularly"? Every two months is "regularly." Ever year is "regularly." Every ten years is "regularly."

Do I have any recourse available to me?

Unlikely. You would have to prove that the seller (1) knew about this issue, (2) failed to disclose the known issue, and (3) had an obligation to disclose the issue, or (1) that the seller made a representation of fact to you that he knew or should have known was false, (2) that you reasonably relied on this representation, and (3) that, as a result of your reliance, you suffered damage.

As far as the first part of that, even if this would have been required under Maine's residential real estate disclosure law (and I don't know if it would or would not have), how could you prove that the seller knew of the issue? As far as the second part, unless you made inquiry about what "regularly" meant, you likely could not prevail. Also, did you forego a professional inspection of the furnace based solely on the seller's representation that servicing was done "regularly"? If not, then you can't prevail and, if so, I'd argue that it wasn't reasonable for you to have done that.

Is there anything I could do?

Get a new boiler. Beyond that, you can give small claims court a shot.

 

[adjusterjack]

We were told (I have a text from our real estate agent) that the furnace had been serviced regularly.

Never rely on what a realtor tells you without verifying it. Expecialy not your own realtor who may have relied on misinformation.

Do I have any recourse available to me?

Probably not. You had the opportunity to have the furnace/boiler (a vital piece of equipment in Maine) inspected by a professional HVAC technician during the inspection period. Did you?

Here is Maine's property disclosure statute:

Study it. There's a few gotchas in there.

It's not a warranty. It's not a substitute for professional inspections.

Note Section 174.4:

Rights waived. Any rights of the purchaser to terminate the real estate contract provided by this section are waived conclusively if not exercised prior to settlement or occupancy, whichever is earlier, by the purchaser...

In other words, you had ample opportunity to get the disclosure statement and verify everything that was on it by having the property and the equipment properly inspected.

I think it's too late now.

Of course, it couldn't hurt to consult an attorney and see if you have any options.

 

[zddoodah]

I think "adjusterjack" intended to include a link but forgot. The relevant law is in Subchapter 1A of Title 33 of the Maine Revised Statutes, starting with section 171. Pay particular attention to section 173: "Unless the transaction is exempt under section 172, the seller of residential real property shall provide to the purchaser a property disclosure statement containing the following information:

...

2-A. Heating system or heating source. Detailed information on the system or source used to supply heat to the property, including" various specific information, including "F. Any malfunctions per heating system or source within the past 2 years."

As I mentioned previously, unless you can prove the seller know about the issue, then there was nothing to be disclosed.

If you google "maine real estate property disclosure form," you can find a standard form. Did you receive one of these as part of the transaction? If so, what did it say about the heating system? If not, why did you go through with the transaction without it? In your original post, you only mentioned a text message about "regular" service. I would have thought that, if you had gotten a disclosure form, you'd have mentioned it.

As "adjusterjack" noted, you have some potential problems under section 174. Depending on when/if you received the disclosure form, you could have cancelled the purchase. Your right to terminate was waived when you closed and occupied the premises, but that doesn't mean you might not be able to sue successfully for monetary damages if you can prove the elements of a claim.

 

[adjusterjack]

I think "adjusterjack" intended to include a link but forgot.

You're right. Thanks for posting it.