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Failure to disclose drainage issue in home sale

In brief: Received demand letter from buyer of my house f finklebots02/15/19
Yep. I’d ignore until I was served. irishlaw02/15/19
Thx. Atty I spoke with agreed. finklebots02/15/19
Sounds like the buyer was put on notice and didn’t take fu irishlaw02/15/19
Ha ha, yep. And the funny thing is, I know how to fix the is finklebots02/15/19
I wouldn't let your ego get in the way if this is true. Jus jeffm02/15/19
Yeah, but drainage is such a subjective thing. What's adequa finklebots02/15/19
Jeffm, with all due respect I disagree on telling her about alphadog1502/17/19
You could be right on that. It's a judgment call. If failu jeffm02/17/19
Only caveat on doing nothing (with the knowledge that she is jd4hire02/17/19
Written disclosure, accepted by buyer... deal closed. No bl 2ski02/17/19
State is CA. Not really sure what case law is, but I disclos finklebots02/17/19
I think OP is right to ignore unless served. Once out of sma onehell02/20/19
finklebots (Feb 15, 2019 - 5:23 pm)

In brief:

Received demand letter from buyer of my house for 15k. 8k for installing drainage and 7k for "possible additional expense once repairs begin." No attorney rep ping her, but the demand amount puts us above small claims. My sellers disclosures clearly indicate drainage issues exist and that additional drainage was installed. Her photos show no water intrusion into the house. She asked no follow up questions during home inspection period. In fact, she never met me. Transaction with agents on both ends.

Proper course of action is to ignore this completely until sued, correct?

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irishlaw (Feb 15, 2019 - 5:43 pm)

Yep. I’d ignore until I was served.

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finklebots (Feb 15, 2019 - 5:47 pm)

Thx. Atty I spoke with agreed.

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irishlaw (Feb 15, 2019 - 6:00 pm)

Sounds like the buyer was put on notice and didn’t take full advantage of an inspection...at that point Caveat emptor.

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finklebots (Feb 15, 2019 - 7:55 pm)

Ha ha, yep. And the funny thing is, I know how to fix the issue for maybe $500 to a grand at most, and she's going to go with the 8k fix. She's complaining about the part of the yard I didn't get to repairing. If she'd have just asked me nicely I'd have been happy to point her in the right direction.

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jeffm (Feb 15, 2019 - 9:53 pm)

I wouldn't let your ego get in the way if this is true. Just tell her about the $500 fix. Then, on top of caveat emptor, you also have failure to mitigate.

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finklebots (Feb 15, 2019 - 10:05 pm)

Yeah, but drainage is such a subjective thing. What's adequate? Right now she has some puddles that drain slowly because two drains a former owner put in lead nowhere. She thinks it necessary to break up 60 feet of concrete and run a pipe all the way to street. Me? I'd just take a sledgehammer and break up the old pour and buy some nice pea gravel. But that would take too long to explain to someone so unreasonable. Kinda wish I could tell her that, but I don't want to open a can of worms by arguing about the what the appropriate solution is. There's no real damages she can show anyway.

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alphadog15 (Feb 17, 2019 - 10:29 am)

Jeffm, with all due respect I disagree on telling her about the $500 drainage fix. OP really has no liability at this point, but writing a suggestion to fix it could potentially create liability if she screws it up. I’d just ignore it.

Unfortunately this type of buyer isn’t terribly uncommon. In my experience they’re usually first time buyers who have been used to having everything fixed by someone. Takes them a while to understand the full responsibilities of homeownership.

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jeffm (Feb 17, 2019 - 2:10 pm)

You could be right on that. It's a judgment call. If failure to mitigate is going to be a defense, it is better whenever you can show that the plaintiff knew he had a cheaper option and was foolhardy in spending 10x that amount.

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jd4hire (Feb 17, 2019 - 11:39 am)

Only caveat on doing nothing (with the knowledge that she isn't repped, so demand is likely not sophisticated), some jurisdictions have consumer protection/ unfair trade practice laws applicable to homebuying where a response is statutorily required if a demand is made pursuant to that statute.

I'd just double check you have no such laws even if she doesn't cite a statute. If your jx does have a law, figure out what type of response, if any, is required.

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2ski (Feb 17, 2019 - 3:58 pm)

Written disclosure, accepted by buyer... deal closed. No blatent/hidden health safety issues nor actual damages. Puddles of water are not same as house flooding due to faulty plumbing. She will probably try small claims to extract some $ from you. Show the disclosures and you are clear. No response needed now.

What actually must be disclosed in your state? Poor drainage, while not flooding your or adjacent house/property may not have been required to disclose. Just sayin'.

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finklebots (Feb 17, 2019 - 5:58 pm)

State is CA. Not really sure what case law is, but I disclosed the existence of a drainage issue on the form the realtor gave me.

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onehell (Feb 20, 2019 - 11:29 am)

I think OP is right to ignore unless served. Once out of small claims, pro pers are unlikely to figure out the process on their own. And I doubt she'd find a lawyer willing to take something like this on a contingency.

That's the funny thing about residential real estate disclosures IMHO. In my state, caveat emptor is essentially dead because realtors killed it. I think the language they put in their disclosure form creates a lot of disclosure duties that wouldn't have otherwise existed, and indeed the only thing they can cite to is a single old state appellate case that isn't really as broad as they claim, but it doesn't matter. It's industry-standard and no one will proceed without it.

But the irony is that really the form just protects the realtor from accusations of complicity. As a practical matter, lawyers don't take the case unless you're either paying by the hour or the issue is both incredibly egregious and clearly collectible i.e. involves mansions and a very clear failure to disclose or even actively hide some major material problem. So in theory you have this incredibly broad disclosure duty where almost anyone could later sue for almost anything. But in practical reality it's rarely worth trying much more than a demand letter. Unless you're rich, as usual.

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