What can a property owner due if a builder built a hazardous drainage ditch my property?

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What can a property owner due if a builder built a hazardous drainage ditch my property?

I am a new property owner in an open ditch community. My particular lot has the biggest drainage ditch. It’s hazardous due to standing water that breeds algae and mosquitos. It’s also 5 foot and drops straight down in the front and with exposed wires. I have contacted the state department of transportation and they say the builder and developer needs to fix it. I want them to pipe it or level it. The builder says that they don’t care about safety or how it looks or functions but the house sold. When we first bought the house were told for 16 months they will fix it but nothing. Everyday I walk outside and see families playing in the front yard but we can not. If a ball falls in we have to fish it out or if we run we can fall down in it. Everyday I’m reminded of all the lies. I can go on an on with more details if needed. Can I sue? Can I get this fixed properly? Can the pipe this ditch like the did to some other homes?

Asked on October 21, 2016 under Real Estate Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You cannot sue the builder for this because it was not a "latent" or hidden defect which you could not know of unless the builder specifically disclosed it to you: based on what you write, it is a large ditch in your front yard. Therefore, you knew--or had the easy opportunity to know (such as by visting the property before putting in an offer) of it before buying the property; having bought the property with an obvious condition, you give up any claims against the builder for that condition. Your purchasing it with awareness of the condition waives your right to sue.
If they put an agreement to fix the issue into writing *before* you closed, you could, however, enforce that agreement--but it would have to be in writing, and have been made prior to closing, since after closing, when they have already been paid, you are not giving them any more "consideration" for the agreement, and so it is not binding.
As to whether you may legally fix it: that depends on local zoning laws and whether there are any restrictive covenants in your deed or rules/regulation in your community (e.g. if there is an HOA) preventing it. If there are no local or community or deed restrictions, you should be able pipe it.


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