property disclosure

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property disclosure

I recently sold my home. The new owner is now coming to me saying that I did not disclose water entering the garage. In my 6 years of living there I never had water enter the garage, nor did I know water would enter when I filled out the disclosure form. He is threatening to take me to court via breach of contract and wants me to pay for the cost to fix it. Owner has living in house since August, disclosure form was filled out in May.

Asked on August 28, 2019 under Real Estate Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

You can be sued in the sense that he can file a lawsuit against you--courts do not prescreen lawsuits to make sure they are viable. However, if you did not know about the water, you are not liable: a seller is only liable for failing to disclose conditions known to him or her since, by definition, you cannot disclose and therefore have no responsibility to disclose something unknown to you. So you may well have a good defense if sued.
If the buyer does sue you, however, it is possible, depending on the exact facts, that he could win. As the person suing you, he will have to prove that you knew or that logically, under the circumstances, you must have known about the condition. For example, say that he can show that water enters the garage when it rains; since you lived there 6 years and it rained many times during that 6 years, it would be logical that you would in fact have had experience of flooding. In a case like this, if the seller can show that it makes no sense that you would not have known under the circumstances, he may be able to win the case by convincing the court that you must have known.


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