How do I calculate loss of use of a portion of my home due to the seller’s non-disclosure?

I just bought a 3 bedroom house, 2 of the bedrooms and 3 closets are unusable due to the smell of urine; 2 separate profession cleaning agencies have verified this. I now have to sue the seller. Our mortgage is $3150 and the house is 1700 sq ft. My children sleep in the living room so we can’t use most of the house the way a family normally would. The smell was so intense, everything has been taken out of those two bedrooms since the first day we moved in.

Asked on November 18, 2015 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

First, IF you have a claim, it would not be for a portion of the mortgage, or taxes, or value, etc. of your home--it would be for the cost of cleaning and de-odorizing (which might involve replacing carpetting, repainting walls, etc.); if you had a claim, therefore, it would be this cost.
Second, you'd only have a claim IF 1) you could not tell about the smell when you or your representatives (e.g. a home inspector) inspected the home--and that's not the same thing as saying you didn't notice, but rather means that no reasonable person walking through or inspecting the home would have been expected to detect it; and 2) the seller lied about or hid the smell in some way If the smell is as bad as you say, it should have been detectible when you saw the home in persons; if it was, you cannot file a claim or legal action about it now, because by buying the home despite the smell, the law holds that you waived, or gave up, your right to sue. (Basically, you bought the home "as is" with the smell.)
So unless the seller was actively covering up the smell with strong air fresheners, fans, etc. the times you saw the home, or doing something else to conceal it, you would most likely not have a viable claim. If they were doing this, though, then you could sue for the remediation/de-ordorizing cost.


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