Holding the previous owner to account for something that is not up to code?

[egrace]

Jurisdiction

Connecticut

Hi all

Say I buy a residential prop, and have a home inspection prior to closing. The home inspector did not recognize/mention that part of the property is not up to code in the report. Apparently he is not liable for not finding issues? I close, and then find out part property is in fact not up to code from another licensed professional. I am not ready to say that the inspector was negligent here; unless failing to find something - that IMHO should be obvious - is considered negligence?

First, this has nothing to do with the normal process of aging and decaying.

Second, upon research, I can not find anything that describes part of the property not being up to code as a latent defect.

Third, I am aware of "buyer beware", but it seems to me, based on research, that "BB" does not apply when there is no reasonable expectation of a potential issue. Does it? ie - if I walk in and have a reason to suspect that "A" is not up to code, and do not take steps to have it properly inspected, etc. - I think we can all agree that would be on me. But if I walk in and have NO reason to suspect that "A" is not up to code, would that still be on me after closing? My research suggests not.

Four, as the seller is responsible for latent defects (that they are aware of), are they also responsible for the prop being up to code?

Five, what happens when the seller says "I didn't know"? They can say that with a latent defect, and the burden would be on me to prove that they did know. Does the same thing apply with something not up to code?

These are the things that I wonder about, and am looking for the proper place to do research. Typing terms into google helps a little, but does not get me where I want to be. I guess the terms are just too broad. If I type in the specific issue, I get nothing. I went to my local law lib, and the librarian didn't really know where to tell me to start. I tried the CT judicial branch site, but the case lookup area is By Party Name, Docket Number, Attorney/Firm, or Property Address. So, no chance of searching there.


Any case law that anyone is familiar with? Is there an area of the internet to search case law, to see if something exists?

Thanks much in advance.

 

[justblue]

Hi all

Say I buy a residential prop, and have a home inspection prior to closing. The home inspector did not recognize/mention that part of the property is not up to code in the report. Apparently he is not liable for not finding issues? I close, and then find out part property is in fact not up to code from another licensed professional. I am not ready to say that the inspector was negligent here; unless failing to find something - that IMHO should be obvious - is considered negligence?

First, this has nothing to do with the normal process of aging and decaying.

Second, upon research, I can not find anything that describes part of the property not being up to code as a latent defect.

Third, I am aware of "buyer beware", but it seems to me, based on research, that "BB" does not apply when there is no reasonable expectation of a potential issue. Does it? ie - if I walk in and have a reason to suspect that "A" is not up to code, and do not take steps to have it properly inspected, etc. - I think we can all agree that would be on me. But if I walk in and have NO reason to suspect that "A" is not up to code, would that still be on me after closing? My research suggests not.

Four, as the seller is responsible for latent defects (that they are aware of), are they also responsible for the prop being up to code?

Five, what happens when the seller says "I didn't know"? They can say that with a latent defect, and the burden would be on me to prove that they did know. Does the same thing apply with something not up to code?

These are the things that I wonder about, and am looking for the proper place to do research. Typing terms into google helps a little, but does not get me where I want to be. I guess the terms are just too broad. If I type in the specific issue, I get nothing. I went to my local law lib, and the librarian didn't really know where to tell me to start. I tried the CT judicial branch site, but the case lookup area is By Party Name, Docket Number, Attorney/Firm, or Property Address. So, no chance of searching there.


Any case law that anyone is familiar with? Is there an area of the internet to search case law, to see if something exists?

Thanks much in advance.

You started your post with the words "Say I buy". To me, and I'm sure others, that implies that this is a hypothetical situation. Am I correct?

 

[egrace]

that implies that this is a hypothetical situation. Am I correct?

No. Maybe that was a poor choice of words on my part.

I do feel that I need to be really light on the details here.

 

[Tax Counsel]

The home inspector did not recognize/mention that part of the property is not up to code in the report. Apparently he is not liable for not finding issues?

That depends on the scope of work you hired him to do, and whether you hired him or whether your lender hired him.

I am not ready to say that the inspector was negligent here; unless failing to find something - that IMHO should be obvious - is considered negligence?

Why do you seem to be so quick to let the inspector off the hook? If the code issues are something that an inspector with his qualifications and experience should have spotted and he missed it, that may well be negligence. More significantly, it could be breach of contract, which may be the better cause of action here.

First, this has nothing to do with the normal process of aging and decaying.

So what exactly is the problem?

Third, I am aware of "buyer beware", but it seems to me, based on research, that "BB" does not apply when there is no reasonable expectation of a potential issue.

That's not how buyer beware works and I don't know where you got the idea it did. When buying a used item, buyer beware is the general doctrine that applies except to the extent a warranty applies or the applicable state law requires specific disclosures by the seller to the buyer. Under the buyer beware doctrine, the buyer takes ALL risk of potential problems and defects in the item purchased, whether the buyer knows of problem or not. Even if the buyer has no reason at all to suspect a problem, the problem is his/hers to deal with. That's why buyers need to do their best due diligence when buying used items to ensure that they are getting what they think (hope) they are getting.

A seller cannot, of course, commit fraud. So if a seller actually lies to the buyer about a material fact regarding the item and the buyer relies on that representation the buyer can have a claim for that. General sales puffery is not fraud. So a seller is best advised not to make any claims about the item that he knows to be untrue or that he is unsure about. But if the seller says nothing then it is up to the buyer to inspect the item and figure out if there are any defects in it. Obviously, the more expensive the item, the more closely the buyer will want to inspect the goods.

Most states do impose some obligation on home sellers to disclose certain things they know to be wrong with the house to the buyer. Some states require some limited disclosure for used car sales by dealers, too. For most goods, the buyer has not even that protection.

So for the house sale here, if the seller knowingly fails to make a required disclosure that can give you an avenue of relief. In Connecticut, the required disclosures the seller must make are contained on a Department of Consumer protection form. You should have got that before closing on the property. Looking at it, you'll note that whether there are any code violations on the property is not one of things that the form requires to be disclosed. So it appears this was on you to find out. This is why you hire your own home inspector and do not rely on your lender's home inspector. If the home inspector fails to spot it, that is where you may have recourse.

You'll want to see a civil litigation attorney in your state about your options. Most will give you free initial consultations.

 

[adjusterjack]

I do feel that I need to be really light on the details here.

That's a mistake.

Imagine a large peg board on the wall in front of you. The peg board has a thousand holes. Each hole represents a case decision. But every hole is of a different size and shape, with very minute variations. You have a peg. You know the peg but you don't know how to find the hole that fits it. Oh, you can try every hole one at a time but that could take you weeks or months if you ever find the right hole at all.

We, on the other hand (some of us) know how to find the hole but know nothing about your peg so we have no way of helping you.

Now tell us about your peg.

Did you buy a house? Did you find something wrong that's going to cost you a lot of money to fix? What did you find? How much will it cost? Do you want to be compensated by somebody? The Seller? The Inspector? The Realtors?

Provide the details and one of us (my money is on T.C.) will tell you what hole your peg fits in.

(Sorry, that's a terrible analogy, but it was all I could think of.)

 

[Tax Counsel]

(Sorry, that's a terrible analogy, but it was all I could think of.)

How about this one? Suppose you go into a doctor's office and tell the doctor "Say I feel a bit sick. I won't give you any more details than that. Do I have cancer?" The doctor cannot possibly answer that without more facts. The doctor knows how to diagnose cancer when he/she has all the facts, but when given something only as vague as "I feel a bit sick" that could be anything. Same with lawyers. We know the law, but in order to tell you how the law applies to you we need all the facts. Just saying there are some unspecified code violations that the inspector didn't catch could amount to all kinds of things and doesn't help narrow it down.

 

[welkin]

Hi all

Say I buy a residential prop, and have a home inspection prior to closing. The home inspector did not recognize/mention that part of the property is not up to code in the report. Apparently he is not liable for not finding issues? I close, and then find out part property is in fact not up to code from another licensed professional. I am not ready to say that the inspector was negligent here; unless failing to find something - that IMHO should be obvious - is considered negligence?

First, this has nothing to do with the normal process of aging and decaying.

Second, upon research, I can not find anything that describes part of the property not being up to code as a latent defect.

Third, I am aware of "buyer beware", but it seems to me, based on research, that "BB" does not apply when there is no reasonable expectation of a potential issue. Does it? ie - if I walk in and have a reason to suspect that "A" is not up to code, and do not take steps to have it properly inspected, etc. - I think we can all agree that would be on me. But if I walk in and have NO reason to suspect that "A" is not up to code, would that still be on me after closing? My research suggests not.

Four, as the seller is responsible for latent defects (that they are aware of), are they also responsible for the prop being up to code?

Five, what happens when the seller says "I didn't know"? They can say that with a latent defect, and the burden would be on me to prove that they did know. Does the same thing apply with something not up to code?

These are the things that I wonder about, and am looking for the proper place to do research. Typing terms into google helps a little, but does not get me where I want to be. I guess the terms are just too broad. If I type in the specific issue, I get nothing. I went to my local law lib, and the librarian didn't really know where to tell me to start. I tried the CT judicial branch site, but the case lookup area is By Party Name, Docket Number, Attorney/Firm, or Property Address. So, no chance of searching there.


Any case law that anyone is familiar with? Is there an area of the internet to search case law, to see if something exists?

Thanks much in advance.

Saying that a code violation is a latent defect is not a true statement of fact. Do you realize how many codes there are when it comes to real property? When was the house built and what codes were in affect when it was built? Do you understand how many times and how often codes change over the years?

Let's just list a few codes that may affect the property: building, zoning, electrical, plumbing, mechanical, fire, property, and sanitary. So when a house was built and what version of what code was in affect at the time determines if the house was built in accordance with the applicable codes and if the property was issued a Certificate of Occupancy .

When a house may have been added to or renovated may have required certain things to be brought up to the current codes but not a requirement in all jurisdictions and not in the untouched parts of the house. An example might be a requirement to add smoke detectors.

So without knowing what code violations you may be speaking of it is impossible to give you reliable advise.

And home inspectors can only see what they can see.

You can search Google Scholar for case law.

 

[zddoodah]

The home inspector did not recognize/mention that part of the property is not up to code in the report. Apparently he is not liable for not finding issues?

I'm not sure why you put a question mark at the end of this sentence. Did you intend a question? Is there some reason why you think the inspector has no liability here?

unless failing to find something - that IMHO should be obvious - is considered negligence?

Usually is.

Third, I am aware of "buyer beware", but it seems to me, based on research, that "BB" does not apply when there is no reasonable expectation of a potential issue. Does it?

Caveat emptor (Latin for "let the buyer beware") is not, on its own, a legal principle. The extent to which laws based on this principle are applicable to your situation isn't apparent from your post.

as the seller is responsible for latent defects (that they are aware of), are they also responsible for the prop being up to code?

Depends on what the issue is and the extent to which the seller was aware of the issue. In the abstract, it's possible that the issue existed when the seller bought the property and that the seller never learned of the issue.

Is there an area of the internet to search case law, to see if something exists?

scholar.google.com

If you don't want to provide any details about your situation, I'd suggest you consult with a local real estate attorney.

I do feel that I need to be really light on the details here.

Why?

 

[egrace]

Thanks for the comments.

I needed time to do some research, which unfortunately, has not really led me anywhere.

So ----

Why do you seem to be so quick to let the inspector off the hook? If the code issues are something that an inspector with his qualifications and experience should have spotted and he missed it, that may well be negligence.

Is there some reason why you think the inspector has no liability here?

From the "Practical Guide To Residential Real Estate Transactions". It says that inspectors typically (understandably that does not mean always) have no liability when they miss something.

Saying that a code violation is a latent defect is not a true statement of fact.

Right - that's what I said in my OP - that according to what I see, they are not the same.

Did you buy a house? Did you find something wrong that's going to cost you a lot of money to fix? What did you find? How much will it cost? Do you want to be compensated by somebody? The Seller? The Inspector? The Realtors?

Bought a house, yes, can't say, 15k, yes, seller and/or inspector.

whether there are any code violations on the property is not one of things that the form requires to be disclosed.

Interesting. How is it that known code violations are not required to be disclosed? I believe you, it's just strange that the law requires known latent defects to be disclosed, but not code violations on the property.

So, the issue is on that list. The seller answered "no" (as in no known issue). This tells me that if I try and sue that person, they are just going to say, "sorry, I was not aware".

I went to the law lib again, and did a good deal of research there. But I cant find anything that will help me. I guess the next step is to hit up an attorney.

What's the best method for finding the right atty? The guy I used for the closing is retired. How do I fond someone who specializes in litigation (should I happen to go there, tho I am hoping not to).

Thanks again.

 

[adjusterjack]

From the "Practical Guide To Residential Real Estate Transactions". It says that inspectors typically (understandably that does not mean always) have no liability when they miss something.

Guides don't mean squat. Whether an inspector has any liability for missing something depends on the agreement that you sign when you hire one. You either agreed to his disclaimers or you didn't. And if you didn't keep a copy of what you signed, oh well.

Bought a house, yes, can't say, 15k, yes, seller and/or inspector.

Then you will have to file a lawsuit. They certainly aren't going to hand over the money without raising a defense.

What's the best method for finding the right atty?

You google real estate attorney for your city and start making phone calls and asking questions.

 

[welkin]

Right - that's what I said in my OP - that according to what I see, they are not the same.

You still haven't told us what code violation you are talking about. Why is that?

 

[egrace]

Ok, new question with new information.

Spoke with someone at the HOA, and they told me that a number of years ago, several units had this particular work, or "upgrade". They didn't remember when, and they had no way of knowing if my unit was included off the top of their head, but they said they would do some research and get back to me.

Lets say they are able to tell me the co. name, and that the work was done 8 yrs ago. My understanding is that typically, you have two years to file a suit. But as I am the new owner of only a few months, does that two year "rule" still apply?

And can I hold that owner to account? (It likely wouldn't be the person who sold me the unit, as they weren't here for very long).

 

[egrace]

Whether an inspector has any liability for missing something depends on the agreement that you sign when you hire one. You either agreed to his disclaimers or you didn't. And if you didn't keep a copy of what you signed, oh well.

I signed paperwork after the work was done, not before. There was no signed agreement in place prior to the inspection.

And yes, I have a copy, and if I did not, I could always get it from the inspection service.

 

[Tax Counsel]

Lets say they are able to tell me the co. name, and that the work was done 8 yrs ago. My understanding is that typically, you have two years to file a suit. But as I am the new owner of only a few months, does that two year "rule" still apply?

Yes, the same rule applies. The people who owned it at the time were the ones who needed to sue if the work was faulty. You don't get to start the statute of limitation (SOL) clock over because you are a new owner. You had the chance to inspect and find the problem and make your buying decision based on that.

And can I hold that owner to account? (It likely wouldn't be the person who sold me the unit, as they weren't here for very long).

No. You didn't buy the house from them, and they didn't do the work. And you'd still be stuck with the SOL problem here too.

 

[egrace]

Hi, I am back

Apologies for being so vague before, but I didnt want to make too much public. Hope you all can understand.

And thank you for all of the posts above.

So, it is the fireplace that is not up to code. The two sidewalls are right next to the firebox, and they are wood. You cant have combustible material that close to the firebox; the manual calls for 22". Above the firebox is a piece of wood trim, also a no-no, and then there is sheetrock that goes up to the mantel. I am pretty sure that's a no-no as well. Also, the hearth does not meet minimum requirements.

The listing agent (who served as a dual agent) has sent me pics from listing many years ago, and the mantle and surrounding pillars appear to be the same as they are now. So it's been like this for a while. The agent also mentioned the five-day review period, seeming to suggest that it is my responsibility to make sure everything is ok within that time period. Not sure how that works.

The inspection co. says they are not responsible for not knowing the fplace is not up to code, as "there is no way they can know all of the codes for everything". Part of me does not want to buy that; shouldn't an inspector know that combustible material can't be right next to the firebox? I would understand if they didn't know the exact clearance, but still...

The HOA bylaws require a yearly inspection of the fplace/chimney.

The HOA has no record of any work being done to the fplace, nor do they have any variance req. on file.

Previous owner did not have such an inspection. They had a building inspection, but not one specifically for the fplace/chimney.

Can I assume the previous owner should pay for the repairs? I understand that if someone is unaware of an issue, they can't really be held liable - unless they should have known. Well, had they had a proper inspection as required, they would have either taken care of the issue, or disclosed the issue to me.

Any more thoughts will be appreciated.

 

[Disabled Vet]

Just a thought... Is there two different codes for a wood burning fireplace vs a gas fireplace?

 

[adjusterjack]

Any more thoughts will be appreciated.

You're reaching for something that isn't going to happen. Have you discussed your situation with an attorney yet? If not, I suggest you do so.

 

[egrace]

Just a thought... Is there two different codes for a wood burning fireplace vs a gas fireplace?

I think so. I think, that if I wanted to do gas, I would not have to worry about the clearances, but that conversion costs almost as much, and reduces the overall value.