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  • My Legal Briefcase

    How and When A Defect in your House Can Become a Small Claim - Part 1
    Posted: 2010-11-23 09:22:30

    It’s a beautiful summer’s day and you’ve just moved into your new home. You did all the right things when you bought your house, or so you thought.  You had an inspector inspect the house. You asked the owner about any issues they had while they owned the home. Everything looked good.

    And then Autumn comes along. With it comes wind, heavy rains, and a whole host of surprises.

    One day, after a heavy storm, you go into your basement and discover water pooling in one corner – right where you stored your collection of rare comic books!

    The contractor you hire to repair the basement then tells you that the crack in the foundation has been there for a while and this is certainly not the first time the basement has leaked. The quote to repair the basement is $10,000.

    The more you think about it, the more you are convinced that the person who sold you this home hid information about the leaky basement.

    What can you do?

    Today, we start a series on the issue of latent defects and answer some common questions that arise when a situation like the one above becomes a reality.

    Question: I bought a house without an inspection, and later found a defect, can I sue?

    Caveat emptor. Buyer beware.

    Generally, when purchasing a house, the onus is on you to identify defects. You must be sure to inspect the house, both through discussions with the seller and by an independent inspection. However, there are exceptions for defects that could not have been discovered through a careful inspection.

    Question: What types of defects can you sue for?

    There are two types of defects: patent and latent.

    Patent defects are issues that the buyer should be able to discover by undertaking a proper home inspection. If there is an obvious defect with the home and you fail to do your due diligence by checking everything, then you may not have proper grounds on which to sue.

    Latent defects, on the other hand, are issues with the house that can’t be found through a proper inspection, because to do so would require destructive testing, such as breaking down walls. They are things about which the homeowner may or may not be aware, such as cracks in the basement foundation, holes in the roof, or rotting support beams that can only be discovered after a heavy rainstorm.  Under certain circumstances you can sue the homeowner over these latent defects.

    Question: If it is a latent defect, when can I sue in court? Or when can I sue the previous homeowner for a leaky basement or hole in the roof?

    There are certain defects even the seller couldn’t know about. In this case, there is usually little chance of winning a suit.

    If, however, you can show in court that the seller must have known about the defect and did not tell you about it, then you stand a chance of winning a suit.

    Next time, we’ll answer questions about how you could prove there was a latent defect, what type of damages you could sue for, and when a home inspector’s testimony could work against your lawsuit.

    Image: renjith krishnan

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