Skimmer sinking. Neighbors retaining wall fell.

DB-Cooper

Well-known member
Jun 18, 2019
326
Austin, TX
Interesting thread, crazy about the $500 disclosure waiver in New York. I also don't think the previous owners are legally responsible, ethically yes, but many people sell homes with issues and don't disclose them. The Texas disclosure form is fairly thorough, but people can lie or play dumb. The sellers of my home were fairly honest on their disclosure it seemed, but months after moving in I detected a reasonable leak on the roof/skylight. The disclosure has a clear "Previous Water Penetration". They said "No". I can tell that clearly this leak had to have been known because it appeared the first time it rained after we moved in, and you can see the grout in the tile in disturbed where the leak was. Also, it's hard to miss water dripping in your bathroom. It took 2 months for our first rain storm, the owners were quite responsive to our questions. There were previous remodels so we wondered what was in certain walls, there were abandoned light switches and weirdly located switches for exterior lights. They helped us find all of those, however, when I discovered the leak, I hired multiple roofing companies that all said, "This roof is brand new, this flashing is bad, the roof company that installed this roof 6 months ago should fix this."

When I reached out to the seller and realtor about the roof leak, JUST asking who did their roof 6 months prior, it was radio silence despite three follow-ups. I even literally said I didn't care, but I think they got spooked because they knowingly lied on their disclosure. Hard to say, but this stuff happens.

Good luck, keep us posted!
 

JamesW

TFP Expert
Mar 2, 2011
21,101
Interesting thread, crazy about the $500 disclosure waiver in New York.
Hmmm....should we pay $50,000.00 to fix the problems that we know about or should we pay $500.00 so that we can legally hide the problems and let the buyer deal with them?
 

Dirk

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Nov 12, 2017
7,192
Central California
Not really. When the plaintiff files a case, the defendant has to file a response. They could say that they didn't know, but then they would have to worry about someone saying that they definitely knew. Then, they would be liable for perjury charges. There's definitely someone who could say for sure that they knew. They had at least one estimate. So, the company that gave the estimate could say they knew. The neighbor could say that they knew. You could probably find several others who could say that they knew.
I get that. But what I think is being described here about NY is that it doesn't matter that they knew. They didn't have to disclose it because the OP accepted the $500. That ended the seller's liability. And they wouldn't perjure themselves, because they wouldn't have to (so their lawyer would tell them to tell the truth in the response). They knew, but the buyer took the $500 instead of the disclosure. So the sellers were off the hook at that point.

I'm not arguing that the sellers were in the right. They were disgusting. But injustice is not always illegal. I'm only pointing out what I think would happen if the OP tried to sue the sellers: nothing. If it could be proven that they intentionally hid the defect somehow, then there might be a case for fraud. That's what I was saying would be impossible to prove (not that they knew). A few floaties in a swimming pool, where you would expect to find floaties, would not be proof of fraud. The defect was in plain sight. There were a handful of indicators of the defect in plain sight. The sellers didn't try to fake out what was happening by altering the concrete or the fence line. It was plain as day. The OP's hired crew missed it, they are the real culprits in this unfortunate situation.

I'm only piecing my opinion together from what other have shared here in this thread. So I could be way off. But the inability to get a lawyer to take the case kind'a backs up this theory. If it was possible to get $40K from a $100K settlement, they'd be lined up.
 

jamjam

Well-known member
Jun 25, 2020
199
NY
Unless the buyer was savvy enough to put the disclosure as a condition to closing he doesn’t have a choice to accept it or not. Once in contract the sellers have the legal option to pay the penalty and the buyer can’t do anything about it.
 

Dirk

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TFP Guide
Nov 12, 2017
7,192
Central California
Issue is does the seller have any money? If not might be fighting a lost cause :(
My dad always said " can't get Blood from a turnip"
Doesn't matter (though they would have the money from the house they just sold). They're not liable. The question is: does the home inspector have liability insurance. I think he's the defendant.
 
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Dirk

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Nov 12, 2017
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Central California
Unless the buyer was savvy enough to put the disclosure as a condition to closing he doesn’t have a choice to accept it or not. Once in contract the sellers have the legal option to pay the penalty and the buyer can’t do anything about it.
Interesting. That makes that law even more ridiculous! The buyer's Realtor should have fought for that. But that might have soured the deal (would have), so the Realtor just went along with "standard practice" to not jeopardize his commission.
 

ajw22

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Jul 21, 2013
20,392
Northern NJ
The question is: does the home inspector have liability insurance. I think he's the defendant.
All the home inspections I have seen note that a pool exists, say pool inspection is outside the scope of their work, and recommend a pool company be consulted.

House inspectors are very savvy in carefully saying what they find but state it as opinion and recommend consulting en electrician, or roofer, or other specialist on almost everything.

The inspector in my sons house noted that he believed there was aluminum wiring in the house. My son then brought in an electrician to take a deeper dive into the situation.
 

Dirk

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Nov 12, 2017
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Central California
All the home inspections I have seen note that a pool exists, say pool inspection is outside the scope of their work, and recommend a pool company be consulted.
Right, I covered that. The defect is the sinking yard. The pool damage is a consequence of that, even if it was a pool plumbing leak that caused it. That's immaterial. I contend that the home inspector is liable for not spotting the sinking yard and the crooked fence, unless he has a disclaimer that covers the property's grading. He can't use his pool disclaimer for that defect. IMO. Now, he might get out of paying for the pool damage because of his disclaimer, but he should still be on the hook for the engineered retaining wall that is needed.

House inspectors are very savvy in carefully saying what they find but state it as opinion and recommend consulting en electrician, or roofer, or other specialist on almost everything.
I agree that his contract probably covers his butt for just about anything. Which is how that industry works, unfortunately. It is a bit of a scam. But I think what you're saying would only apply if he called out the defect and advised further study. If there is no mention of it at all in his report, that is negligence, and possibly actionable. IMO.
 
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Desert Dog

Well-known member
Apr 4, 2020
272
Alpine, Ca
Hmmm, reading your last comment Dirk made me thing of something. It is a home inspection. Is the yard in the scope of the inspection? Interesting argument right there. Could the yard effect the home? Absolutely, but still an argument I could see being played unless it is specifically stated in the home inspection scope of work.
 

Dirk

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Nov 12, 2017
7,192
Central California
Hmmm, reading your last comment Dirk made me thing of something. It is a home inspection. Is the yard in the scope of the inspection? Interesting argument right there. Could the yard effect the home? Absolutely, but still an argument I could see being played unless it is specifically stated in the home inspection scope of work.
That's what I'm encouraging the OP to reassess. If the inspection report implies or states that grading is part of the scope of the inspection, and there is no mention of the defect, then I think that's grounds.
 
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Dirk

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Nov 12, 2017
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Central California
This is a page out of my report. I colored the passages that I think would have covered me had this happened on my property. If the OP's report has similar language and the sinking pool decking was not called out, then I think there's something there.

INSPECTION FOCUS
Inspection of the exterior grounds and drainage is visual and intended to determine if the grading is properly carrying surface water away from the foundation. It is based on normal weather conditions at the time of the inspection. Inspectors do not perform a soil analysis or evaluate homes based on geological conditions.
DRAINAGE
Ideally, water should flow away from a property in all directions at a rate of one inch per foot for at least six feet. Most lots however have level areas in the yards and/or patios that can pond water during extended rains. Potential standing water or flooding of the grounds can only be ascertained if it is raining at the time of inspection. It is always
recommended to review the drainage history of the lot with the sellers prior to close of escrow. Provisions should be made for discharging run-off from the guttering system.
TREES & SHRUBS
Inspectors observe trees and shrubs to see if they affect the property. The physical condition of the trees and shrubs themselves is not evaluated. Trees and shrubs should not be touching the roof, siding or the electrical service entrance cables. Irrigation systems are not included in the scope of this inspection.
WALKS & STEPS
Walks and steps are inspected for tripping hazards. Walks and steps may be uneven or may settle over time after the date of the physical inspection.
PATIO / PORCH / DECKS / BALCONIES / STAIRS
Patios and porches are inspected for movement and how they are attached to the property. Overall condition of the framing, hand railings, stairs and coverings are inspected. For a detailed evaluation of any surface fungus, termites or wood destroying organisms, refer to the Pest Control Inspection which is typically provided during a Real Estate Transaction.
DRIVEWAY
Driveways may settle, crack, or deteriorate after the date of the physical inspection. Periodic sealing and maintenance is needed for asphalt driveways.
RETAINING WALLS
Retaining walls support and hold earth in place for landscaping purposes. Evidence of movement and general condition at the time of inspection is evaluated. Structural evaluation is outside the scope of this inspection.
 

JamesW

TFP Expert
Mar 2, 2011
21,101
Probably one of the important lessons is to do your own due diligence.

Walk the property yourself. There are many things that don't require any expertise to detect. The pool being out of level is obvious if you look.

If something seems suspect, check it out.

Also, watch this movie to see what can go wrong when you buy a house.

 
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jamjam

Well-known member
Jun 25, 2020
199
NY
My wife is always frustrated with me because I do my own due diligence. “I don’t understand, most people just write a check and don’t worry about this stuff.” Some people just have a real sense of security when it comes to paying for a service, even if you have no idea what the person’s bonafides are.

I was up in my inspector’s business, I wrote my own rider on my contract to give to my attorney, when I have a service person at my house I make sure I know what they are doing. I walked the yard with the land surveyors. I chewed the guys ear off who serviced my oil burner. I’m out there with the PB asking questions. Wife thinks I’m annoying these guys, but I ask them informed questions and I think most of them respect the fact that I’m talking about things related to their trade that the average homeowner knows little about.
 
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DB-Cooper

Well-known member
Jun 18, 2019
326
Austin, TX
As stated above, home inspectors assume no fiscal liability for ANYTHING. Quite literally their contract states that. It's all best effort. They do however, turn up many things, but they carry no liability outside of their Yelp reviews and/or if they actually damage something in the home. Outside of leaving a bad/warning review, I wouldn't focus any time on the inspector.

it's a shame this exists in NY, but those quote is legit:
"should we pay $50,000.00 to fix the problems that we know about or should we pay $500.00 so that we can legally hide the problems and let the buyer deal with them? "

If I ever buy a house in a state that has the convenient disclosure opt out, I would never take that.
 

Dirk

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Nov 12, 2017
7,192
Central California
As stated above, home inspectors assume no fiscal liability for ANYTHING.
That's not true in California. Here inspectors are liable for four years, and can be charged for the cost of repairs for things they missed. I can't speak to other states...

That's not to say his contract couldn't state otherwise, which may or may not hold up in court. NY? Who knows. I can go round and round (I have), but I'm just pointing out a possibility that the OP might want to check on before he gives up.

If I've learned nothing else today, it's how wildly different these matters are handled from state to state.

And that glazing over a home inspector's contract, without fully understanding what you're signing, can land you into a six-figure nightmare right quick.
 
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