Case Study: Disclosure of Leak and Remedies

A Leak was Discovered, Corrected and Disclosed

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After the deal was firm, the seller noticed a water leak in the basement. He then discovered a crack in the basement wall and had it corrected with a 25-year transferable warranty to the buyers. The insulation on half the height of the basement wall was partially removed and subsequently taped back once the correction to the wall was made. The seller now disclosed it to the buyers.

The Buyers Inspected; Seller Declined Request

On inspecting the remedial work the buyers noticed sweating on the insulation inside the vapor barrier. They became suspect and wanted the seller to remove all of the insulation on the damaged wall, to see whether other cracks existed. The seller declined the request and would not allow the buyers any further inspections. Though not agreed to in the contract, the seller felt they had already generously given the buyer a number additional inspections to measure the kitchen for a renovation quote, and to measure for flooring and other updating plans.

Extended Warranties are Unlikely

The seller said that once the deal closed and the buyers owned the property they could open it up themselves. If by chance other cracks were discovered, which they doubted, the seller suggested they could contact the concrete subcontractor that built the basement and/or the builder of the home. Typically, however, the basement subcontractor gives a 2-year warranty on the foundation and at this point the house is 10 years old. Though unlikely, if any such extended warranty existed, the seller should produce written evidence of its existence and transferability.

The Deal Closed with No Additional Problems

The buyers were instructed to talk to their lawyer. They, however, said that they didn’t want to complicate the matter with lawyers and wanted the sales representatives to help work it out. The respective sales reps, though, could do no more as the seller was firm on his position. On consulting with their lawyer, the buyers closed on the deal and subsequently no further problems were discovered.

Some Take-aways

The seller was forthright in making the buyer aware of the leak, the crack and the fix. As advised, the buyers were wise to close. Under our system, if additional cracks were found they could go after the seller, though the onus would be on them to prove the seller was aware of other cracks. If the buyers chose not to close they could be sued for breach.

Before Closing

Before closing lawyers typically ask if the buyers have performed a final viewing and whether they noticed any issues compared to when they initially saw the house. The buyers then tell about the crack and fix…as well as other concerns should they have any.

Some Possible Solutions:

  1. They can try to negotiate a holdback until they discover if other cracks are present.

  2. They might attempt a price reduction.

They could threaten not to close, leaving them open to legal action: a risky idea. Closing was the right approach.