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Question DetailsAsked on 7/28/2017

I bought a home with a material undisclosed defect. The owner was suckered by the previous. Original owner liable?

The original owner demolished and buried a pool under a few feet of topsoil. The owner I bought it from didn't know that. Now I'm trying to do sitework and expansion and its major remediation. Original owner did not disclose to the owner I bought from.

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You would need a real estate law specialty lawyer - because it depends a lot on the disclosure laws in your state. Generally, I would think that IF the buried pool were required to be indicated on the plat (rare if ever), or if a demolition permit were required and he did not get one AND you as buyer did a search of previous building/demolition permits BEFORE the end of the contingency period, then you might have a case - assuming you could tie this down to a specific prior owner, if he was not the original owner (original house construction) on the lot. So - not likely to succeed.


Generally, disclosure (see your specific state requirements) only has to disclose known "deficiencies" or "problems" with the property, including those specifically required to be disclosed and other non-functioning equipment or known hazards or problems. An abandoned and buried structure, unless required to be disclosed (like a landfill or hazardous waste spill or buried fuel tank or such, in most states), would not be a "problem" requiring disclosure.


One additonal factor which commonly comes into play is the disclosing owner has to know or have good reason to believe that the condition is disclosable - i.e. it has to be willful failure or refusal to disclose to be actionalbe, at least that I have ever seen. So even if illegal, if he tore out and buried a pool, if he thought that was OK to do, he would not be subject to recourse for failing to disclose it.


Also, if doing major sitework and remediation the added cost of that pool is likely to be fairly small amount unless you were planning on putting a structure right on top of it which requires excavation of the debris and presumably loose fill - maybe a thousand or two concrete disposal charges additional to what you are doing, or potentially a lot less depending on how deep you are going for sitework like grading/landscaping only. And even if it does all have to come out to put in properlyu compacted structural fill, your recourse would likely be limited to the cost of removing the concrete and pool debris, not the fill - because putting in loose fill in a hole generally is not illegal.[Though that comes back to the permit thing - generally any fill over 3-6 feet thick, depending on local codes, requires a building permit.]


So - you could search the building/demolition permit records on the property, but if it is in there (either as a pool construction or demolition permit or on any associated plans), or if it showed on your title survey (commonly in the title insurance folder you got when you bought), then it would have probably been considered "disclosed" by it being "discoverable" by a reasonably diligent search, so you would likely have no case in that event. Ditto if no permit or title notation about the pool was required in your area.


IF - and I say IF - permits were required or the pool concrete was demolished and illegally dumped into the hole, then you MIGHT have a remote basis for cause for action - though even then that is a long stretch, and legally you might have to go against the previous owner and then HIM sue the owner who buried it. Also, the original owner's homeowners insurance on that property would of course be cancelled/expired, and his current homeowner's insurance quite likely would not cover liability related to a previously owned home, except maybe in the case of deliberate fraud.


But I would say equally likely he would be fined for the violation, then YOU (as the current owner) would receive a notice of abatement requiring that YOU remove all the concrete and piping and such, on the basis of it being an illegal landfill on your property. So - might be best to just get any necessary permits and dig it out as necessary for your plans and dispose of it (or relocate plans to avoid it) and not try for recourse against prior owners. Course, if you run into old oil tank or contaminated soil or such dumped in there too, then different story.


Not to mention that the purchase contract commonly acts as a "final settlement of claims" document, preventing buyers from going back against sellers after closing except in cases of deliberate fraud (of which there is no appearance of such by the immediately previous owner) and any cause of action you would have would likely be against your seller, not the previous one, because the previous one has no legal responsibility or contractual relationship or disclosure responsibility to you. That is a major flaw in real estate law which realtors have fought to keep in place for decades - prior disclosures are not public record, and generally buyers and their realtors forget to require in the contract that the seller provide not only HIS disclosure statement (as required by law or contract) but also that he be required to provide a copy of any and all prior disclosures he has in his possession, including any he received when HE bought.


Ditto to building/demo permits and environmental permits and such - those may exist in the governmental agency files but are almost never researched by buyers. I remember working on the Love Canal Superfund cleanup - some of the properties had landfill permit notations in the city building department records but buyers of the lots never researched previous permits or such, so never knew they were sitting on/adjacent to a chemicals landfill.


Would be nice if all construction and plans and permits were required to be permanently on file with a government agency of record (preferably with and annotated on the title), but that is not even required for commercial buildings except in a few jurisdictions. I have worked on many buildings including skyscrapers with zero as-built plans available, and fire departments constantly fight the issue of not having plans of buildings they are going into for rescue operations.

Answered 1 year ago by LCD

1
Vote

You would need a real estate law specialty lawyer - because it depends a lot on the disclosure laws in your state. Generally, I would think that IF the buried pool were required to be indicated on the plat (rare if ever), or if a demolition permit were required and he did not get one AND you as buyer did a search of previous building/demolition permits BEFORE the end of the contingency period, then you might have a case - assuming you could tie this down to a specific prior owner, if he was not the original owner (original house construction) on the lot. So - not likely to succeed.



Generally, disclosure (see your specific state requirements) only has to disclose known "deficiencies" or "problems" with the property, including those specifically required to be disclosed and other non-functioning equipment or known hazards or problems. An abandoned and buried structure, unless required to be disclosed (like a landfill or hazardous waste spill or buried fuel tank or such, in most states), would not be a "problem" requiring disclosure.



One additonal factor which commonly comes into play is the disclosing owner has to know or have good reason to believe that the condition is disclosable - i.e. it has to be willful failure or refusal to disclose to be actionalbe, at least that I have ever seen. So even if illegal, if he tore out and buried a pool, if he thought that was OK to do, he would not be subject to recourse for failing to disclose it.



Also, if doing major sitework and remediation the added cost of that pool is likely to be fairly small amount unless you were planning on putting a structure right on top of it which requires excavation of the debris and presumably loose fill - maybe a thousand or two concrete disposal charges additional to what you are doing, or potentially a lot less depending on how deep you are going for sitework like grading/landscaping only. And even if it does all have to come out to put in properlyu compacted structural fill, your recourse would likely be limited to the cost of removing the concrete and pool debris, not the fill - because putting in loose fill in a hole generally is not illegal.[Though that comes back to the permit thing - generally any fill over 3-6 feet thick, depending on local codes, requires a building permit.]



So - you could search the building/demolition permit records on the property, but if it is in there (either as a pool construction or demolition permit or on any associated plans), or if it showed on your title survey (commonly in the title insurance folder you got when you bought), then it would have probably been considered "disclosed" by it being "discoverable" by a reasonably diligent search, so you would likely have no case in that event. Ditto if no permit or title notation about the pool was required in your area.



IF - and I say IF - permits were required or the pool concrete was demolished and illegally dumped into the hole, then you MIGHT have a remote basis for cause for action - though even then that is a long stretch, and legally you might have to go against the previous owner and then HIM sue the owner who buried it. Also, the original owner's homeowners insurance on that property would of course be cancelled/expired, and his current homeowner's insurance quite likely would not cover liability related to a previously owned home, except maybe in the case of deliberate fraud.



But I would say equally likely he would be fined for the violation, then YOU (as the current owner) would receive a notice of abatement requiring that YOU remove all the concrete and piping and such, on the basis of it being an illegal landfill on your property. So - might be best to just get any necessary permits and dig it out as necessary for your plans and dispose of it (or relocate plans to avoid it) and not try for recourse against prior owners. Course, if you run into old oil tank or contaminated soil or such dumped in there too, then different story.



Not to mention that the purchase contract commonly acts as a "final settlement of claims" document, preventing buyers from going back against sellers after closing except in cases of deliberate fraud (of which there is no appearance of such by the immediately previous owner) and any cause of action you would have would likely be against your seller, not the previous one, because the previous one has no legal responsibility or contractual relationship or disclosure responsibility to you. That is a major flaw in real estate law which realtors have fought to keep in place for decades - prior disclosures are not public record, and generally buyers and their realtors forget to require in the contract that the seller provide not only HIS disclosure statement (as required by law or contract) but also that he be required to provide a copy of any and all prior disclosures he has in his possession, including any he received when HE bought.



Ditto to building/demo permits and environmental permits and such - those may exist in the governmental agency files but are almost never researched by buyers. I remember working on the Love Canal Superfund cleanup - some of the properties had landfill permit notations in the city building department records but buyers of the lots never researched previous permits or such, so never knew they were sitting on/adjacent to a chemicals landfill.



Would be nice if all construction and plans and permits were required to be permanently on file with a government agency of record (preferably with and annotated on the title), but that is not even required for commercial buildings except in a few jurisdictions. I have worked on many buildings including skyscrapers with zero as-built plans available, and fire departments constantly fight the issue of not having plans of buildings they are going into for rescue operations.

Answered 1 year ago by LCD

1
Vote

Sorry about the double posting - the Angies List system does that occasionally when your post does not show up as entered but it is actually hanging up in the system for some minutes, so you enter a second time thinking it did not take the first time.


Couple of afterthoughts which I may not have made clear enough:


1) while demolishing an in-ground pool and throwing the debris (or maybe pool deck pavers/concrete or such) into the pool may or may not be legal in your area, if he just filled the pool in that is commonly done as a legal form of abandonment and legal in a great many areas, if not most.


2) you said the previous owner got "suckered" - note he may or may not see it that way, especiaqlly since it evidently did not affect him at all, so I would not count on him helping you in any way with this situation. Also - do you actually know the previous owner did it - it may have been the immediately previous owner who actually abandoned the pool.

Answered 1 year ago by LCD




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