We recently purchased a home contingent on a home inspection. The home inspection revealed structural water damage to the floor joists, basement dampness, and small leaks in the roof. We want to terminate the agreement, but the seller is willing to make the repairs. Furthermore, the seller never disclosed the existence of these problems. How can we break this deal?
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UPDATED: Feb 20, 2013
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You have an out if the sales contract was contingent not only upon completion of the home inspection but your full approval of the results of the home inspection. That means that there must be a home inspection completed AND you must approve of the condition of the home based on the home inspector’s findings. If the contract was written with only the contingency of getting a home inspection, then once this task was completed, you are obligated to buy the home no matter what the results are. If the contract was written such that, if the home inspection uncovers defects and the seller agrees to and fixes the listed defects, the buyer is obligated to buy, then you are liable. An argument can be made however, that a certain condition such as the damp basement cannot be fixed or fixed properly which may give you the right to cancel the contract. You should consult with legal counsel experienced in real estate seller disclosure matters for his/her opinion after review of the contract documents. If only the Seller had a real estate agent and you did not, there is a question of dual agency and possibly a violation of the real estate agent’s duty and standard of care to you not as a client but as the customer/buyer. In this instance, there appears to be improper disclosure on the part of the seller for misrepresentation and/or non-disclosure of material facts and standard of care liability on the part of the seller’s real estate agent.The seller should have disclosed the condition and history of the roof regardless of it being fixed. You could raise the issue of ” what else was a problem that the Seller fixed and decided not to disclose?” The home inspection is a general visual nondestructive inspection so if there were other defects that were fixed by the seller the home inspector may not have seen it.