What do I do about an issue that was never disclosed?

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What do I do about an issue that was never disclosed?

Me and my now husband bought a house back in March. Everything was fine, we had it inspected and it came back with a few minor issues. A few weeks ago we started getting water in the basement. A huge crack in the foundation had been covered with plaster…well the plaster wasn’t holding anymore. Contacted the inspector and it was never in his report…then we got ahold of our realtor and no issues of that were in the disclosure. So he got a hold of the listing agent and the previous owners claim they have never had a problem or any work done. So now he is saying it’s turning into a he said she said thing. We had a professional out here and he told us it was definitely covered up with water resistant plaster and there is 2 metal pieces that were being used to bind the crack. We don’t know what to do. We feel like we have definitely been cheated.

Asked on July 17, 2017 under Real Estate Law, Ohio

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can sue the seller. Your cause of action would be for fraud, which is the intentional ommission or misrepresentation of a material fact knowingly made with the intent to induce another to rely upon it to their detriment. So in your case, you would not have purchased the house had you known of the basement leak. Your "damages", that is the the monetary compensation you are seeking, would be either the "benefit of the bargain", specifically, what the house should have cost with the defect (i.e. the leaks) or your out of pocket loss. At this point, you should consult directly with a real estate lawyer in your area. After reviewing the details of your case, they can best advise you further.

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can sue the seller/previous owner for fraud and the inspector for negligence.
Fraud is the intentional misrepresentation or nondisclosure of a material fact made with knowledge of its falsity and with the intent to induce your reliance upon which you justifiably relied to your detriment.
In other words, you would not have bought the house had you known of the condition of the foundation.
Your damages (monetary compensation you are seeking in a lawsuit for fraud) would be either the benefit of the bargain or your out of pocket loss.
Benefit of the bargain means that a defrauded purchaser may recover the difference between the real and represented value of the property  purchased regardless of the fact that the actual loss suffered might have been less.
 Out of pocket damages for fraudulent misrepresentation permits recovery of the difference between the price paid and the actual value of the property acquired.
Negligence on the part of the home inspector is the failure to exercise due care (that degree of care that a reasonable home inspector would have exercised under the same or similar circumstances to prevent foreseeable harm). The home inspector would be liable for expenses and other issues caused by his/her negligence.
Fraud and negligence are separate causes of action (claims) in your lawsuit.  You would file one lawsuit naming the seller and inspector as defendants.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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