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    How and When A Defect in your House Can Become a Small Claim - Part 2
    Posted: 2010-12-01 07:41:36




    In the previous post on latent defects, we answered some questions about how to identify a flaw or defect and what options exist should you find a latent defect in a recently purchased home.

    To recap, there are patent defects and latent defects. Patent defects are issues that the buyer should be able to discover by undertaking a proper home inspection. You will not win a Small Claims suit over a patent defect. 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. Under certain circumstances you can sue the homeowner over these latent defects.

    So, you’ve found a defect in your own home, a leaky roof or a termite infestation that the seller did not tell you about. As a result, you decide to sue the previous homeowner for the defect to your house.

    Here are some questions you may have going forward.

    Question: How do I prove that the owner knew about the latent defect?

    Consult with an expert in the field. They can tell you whether the previous owner could have known about, and even covered up, the defect – for example, if there is evidence of previous work done to the home. Also, an objective third party is a good witness to testify at court about whether the previous owner had known about the defect or not.

    Question: How do I determine how much I can sue for?

    First you must answer, “What can I sue for?”  You can ask to have the problem fixed and/or compensation for anything of yours that was damaged.  In our example in Part 1, you could ask for compensation for the damage to your rare comic book collection was damaged.  You should get at least one quote, preferably two quotes, for what it would cost to have the problem fixed. In addition to the cost of repair, you can also be reimbursed for any legal costs you incur.

    Question: The defendant said my house inspector should have seen the defect. Is this true?

    The previous home owner will try to argue that the defect could be found during a proper inspection of the house.  In other words, they’ll claim it’s not a latent defect but a patent defect.  He may even bring his own witness to testify to this.  It will be up to the judge to decide which of the experts they believe.  It will be up to you to raise some doubt about the validity of what the defendant claims.

    Question: The defendant brought a witness to trial who says the previous homeowner could not have known about the latent defect.

    Do not worry.  Again, this is a common counter argument raised by the other party.  You can counter this by having your expert pre-emptively explain why the previous homeowner should have known about the defect, and also challenging the reliability and veracity of the other side’s expert.

    However you decide to proceed with your case, be sure to do your due diligence. Hire an inspector before purchasing a home. In the event you find a latent defect, bring in an expert who can be called upon for their testimony should the issue go to court. Protect your interests and you will have little to worry about.

    Although My Legal Briefcase takes every reasonable effort to ensure that the information on our website and documents are up-to-date and legally sufficient, My Legal Briefcase is not a law firm, and the employees of My Legal Briefcase are not acting as your attorney.

    Thanks to Maggie Smith for the use of her image, http://www.freedigitalphotos.net/images/view_photog.php?photogid=172



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