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What can I do about defects found after closing?

QUESTION:

I bought a house on Pine Island three months ago. Last week, I discovered that the septic tank is defective. My new neighbor told me the previous owners, who have moved to Alaska, knew the septic had a problem. I asked my real estate agent if there is anything that can be done, and she said that I had "examined the property and agreed to accept it" in its condition. Is she right?

ANSWER:

Your rights against the seller for your septic tank problems will depend largely upon the specific terms of your written contract. The specific facts concerning the exact nature of your septic tank’s defects are also important. The extent of the seller’s knowledge about the problem and your own inspection of the property will also be determinative. It is important that your claims against the seller can be backed up with solid proof. Otherwise, the matter may boil down to just one person’s word against another’s.

Often, buyers with problems similar to yours find that the cost of litigation will far exceed the cost of repairs. Since there are no guarantees of winning and recouping your attorneys’ fees and costs, the decision on whether or not to seek recourse against a seller is often one of economics and the gravity of or continuing nature of the problem. However, sometimes there may be free mediation services available from the county. Of course, with your seller in Alaska, you may run into additional difficulties or expense for service of process, etc.

If you used the contract form which is commonly referred to as the "Far Bar Contract," Paragraph N on the back page of the form contains provisions concerning inspections. Of course, this preprinted paragraph could be superseded by other writings between the buyer and seller (see page 14).

Standard N allows the buyer an opportunity to have inspections made on certain items within a specified time. However, the seller is warranting that the septic tank is in working condition.

Proof against a seller after closing is usually very difficult. In a sense, your real estate agent’s response is correct. It is always better to find and resolve inspection issues prior to closing.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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