House Detective: Making the Most of Home Inspection

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: We are in escrow to buy a home. When we made our offer, there was an attractive concrete walkway in the front yard. Since then, the sellers hired a contractor to inspect the septic tank. The contractor had to cut out two sections of the walkway, but when he replaced the pieces, he set them in a way that is uneven, unsightly, and could cause someone to trip. Now the sellers and their agent say it is up to us to replace the damaged pavement because temporary removal was required to meet the terms of the sale. Do we really have to fix this ourselves, or is it the responsibility of the sellers?  Misty

Dear Misty: The sellers and their agent are entirely out of bounds. You made an offer to purchase a property in the condition that existed when it was marketed. Since the offer was accepted, that condition was adversely altered by contractors who were hired by the sellers.

The excuse offered by the sellers and their agent is entirely unacceptable. Suppose the sellers’ chimney sweep had damaged the roof? Would that also be your problem? What if the sellers’ painter had cracked a window? Would you be required to replace the glass? In this case, the sellers had to hire a septic contractor. The performance of that obligation did not license them to denigrate the property at your expense. Either the sellers or their septic contractor should restore the property to the conditions that existed when you made your offer. Your agent, not theirs, should step up to the plate and demand that this be done. Hopefully, you have your own agent in this transaction.

Dear Barry: When we bought our house, the home inspector said he could not open the damper in the fireplace and suggested we have it checked further. We probably should have taken his advice but did not. Recently, we used the fireplace for the first time, and our teenage son had no problem opening the damper. The fireplace worked okay, but on a rainy day the brick firebox became wet. Now we’re wondering why the home inspector was unable to open the damper and whether leak repairs are covered by the home warranty policy.  Mike

Dear Mike: Your son would most likely prevail against the home inspector in an arm wrestling match. Be that as it may, leaking at the chimney top apparently caused rusting of the damper hardware, causing the damper to stick. The resistance was too much for the home inspector but not for your son. To prevent further water intrusion and rust, a chimney cap should be installed. It is unfortunate that caps are not required on all masonry chimneys.

You should also follow the home inspector’s original recommendation and have the fireplace system fully evaluated by a qualified professional, such as a certified chimney sweep. And make sure the chimney cap is the type with a four-sided spark arrestor.

As for home warranty coverage, that will depend upon the fine print in the policy. Warranty companies typically exclude pre-existing conditions.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: We bought our home about four months ago, and now have a big, undisclosed problem. The house is very old and was completely renovated; not by the person who sold us the property, but two owners previous to them. Our Realtor advised us to check for permits at the city hall, which we did. The city showed us copies of permits for the electrical, plumbing, and mechanical work. But we did not notice the absence of signatures on the permit records. We didn’t know that people could apply for permits and never call for inspections. Our second mistake was buying the property without hiring a home inspector. We’d like to blame someone for this mess, but I suppose the lesson here is “buyer beware”. What should we do to get all of this straightened out?  Alison

Dear Alison: Some home inspectors routinely advise buyers to verify the sign-off on building permits. This is because many people have taken out permits for additions, renovations, remodels, and even new construction, without ever calling for an inspection. Municipal building departments don’t check up on every property that has an outstanding permit because many permits are issued without work ever being done. This makes covert work, without inspections or signoffs, an easy sleight of hand. Unfortunately, the victims are the unsuspecting buyers who are easily fooled by the display of an unsigned permit.

At this point, you need to know what is right or wrong with the work that was done. A qualified home inspector can help you find those answers. This, of course, should have been done before you purchased the property. Unfortunately, too many buyers find reasons not to hire a home inspector.

After you review the findings of the home inspection, arrange for the building department to inspect and approve the renovations. But be prepared for anything. This process could be quick and easy, or it could be complicated and expensive, depending on the style and approach of the municipal inspector. For example, the inspector could order you to remove drywall to expose the piping and wiring within the walls. Hopefully, the corrective work, if any, will not be too costly or involved.

After the corrections are completed and signed off, you’ll know that the renovations are safe and in compliance with code. When you eventually sell the property, you can do so without fear of undisclosed defects.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: The home that I’m buying has been vacant for two years, and the sellers have not been truthful about its condition. Their disclosure statement says the furnace is in perfect working order, and they listed no other defects. Last week, I called the gas company to turn on the service and to light the furnace. They red-tagged the furnace as “inoperable” and said they had previously informed the owners of this problem. They also told the owners that the copper gas piping needs to be replaced. The sellers have now agreed to replace the gas lines, but they want me to replace the furnace at my own expense. What should I do?  Diana

Dear Diana: Aside from the debate about who should pay for a new furnace, there is a larger question that involves trust and credibility. The sellers have demonstrated the intent to misrepresent the condition of the home, to conceal the fact that the furnace is defective and in need of replacement. This opens the door to additional uncertainties. What other disclosures might they also have withheld? Possibly none, but now you have to wonder.

Another consideration is this: A home is not a legal dwelling unless it has a functional heating system that complies with minimum standards, according to code. From that perspective, the sellers should pay a qualified contractor to replace the furnace, to make the home a livable dwelling before they sell it.

If the home is a particularly good deal, you might be willing to accept it in as-is condition, without replacement of the furnace as a precondition. That is an investment decision you will have to make. But before you proceed with the transaction, be sure to hire the most qualified and experienced home inspector you can find. The sellers are clearly not providing disclosure. Therefore, you need an advocate who definitely will.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: When we bought our home, the agent was selling it for his mother, and they told us that it was a maintenance-free home, in perfect condition. That was five years ago, and now the undisclosed problems have surfaced. First, we began to have septic problems, but no one could find the access to the septic tank. According to our neighbors, the garage was built over the tank. Another problem was lack of access to the crawlspace beneath the house. The seller had installed a forced air heating system, and the new air ducts blocked the access opening on the side of the building. Our home inspector pointed this out before we bought the property, but nothing was done about it at the time. Well last week, we made a new access hole and got a very unpleasant surprise. The crawlspace is filled with black, smelly, stagnant water from the laundry drain, and mold is growing on the underside of the floor. The seller simply ran a drain hose under the building and never told anyone. After this many years, do we have any recourse?  Leslie

Dear Leslie: If the agent was representing you, as well as his mother, that was not a good arrangement. You should have had your own agent to represent your interests. A good agent, working on your behalf, would have negotiated to have the seller provide a septic inspection report. The septic inspector would have found the septic access or would have discovered that the system was not accessible. In that case, an access would have been created to enable inspection and servicing of the system. If other septic repairs had been needed, that could have been negotiated before you bought the property.

If access to the crawlspace was obstructed, your home inspector should have recommended that access be provided before the close of escrow. If that had been done, the faulty laundry drain, the excessive moisture condition, and possibly the mold would have been discovered.

If these problems had come to light sooner, you might have held the seller, the agent, and the home inspector liable for faulty disclosure. After five years, you may no longer have recourse. However, you should check with a real estate attorney for clarification on that point.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: We just listed our home for sale and are worried about disclosure liability. In the past year, our home has been completely remodeled without building permits. Some of your articles have stressed the importance of disclosing non-permitted work. We plan to follow your advice but are worried that this may not eliminate our liability. What can we do to sell our home without problems turning up later?  Eugene

Dear Eugene: You are wise to approach this issue with caution and concern. In today’s business world, liability lurks around every corner. We can be sued for doing something wrong or doing nothing wrong, and in either case, attorneys are waiting to be hired. Liability can never be fully eliminated, but it can definitely be reduced, and real estate disclosure is a sure way to practice this principle.

When selling a home, every defect you disclose is removed from the list of potential liabilities. But beware: With non-permitted additions and alterations, the ways that you frame your disclosures can make a critical difference. Many sellers make a fatal mistake at this point in their transaction. Instead of simply declaring that the work was done without permits, they state or infer that the work was all done “according to code.” Disclosures of that kind are often made with utmost sincerity, but with little or no actual knowledge of building codes.

Sellers who are not professional contractors, building inspectors, or architects have no idea whether improvements were done according to code. The code books are voluminous, exhaustively complicated, and not easily understood by persons outside of the construction professions.

When you disclose that work was done without permits, you should state that “no guaranty is made regarding compliance with building codes.” You should also recommend that buyers hire a qualified home inspector to evaluate the condition of the improvements, as well as the rest of the property. With that kind of disclosure, you should be reasonably safe from complaints after the close of escrow.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: I am a Realtor and recently closed escrow on a bank-owned property. The bank insisted on an “as is” sale, which is customary with foreclosed homes. My buyers hired a home inspector but decided to forego a termite inspection. After moving in, they found termite damage in the kitchen and dining room. We’ve also learned that the listing agent knew about this damage but withheld disclosure because it was an “as-is” deal and because the seller (the bank) was not required to disclose defects. Do you think my buyers have recourse?  Karen

Dear Karen: People often misconstrue the term “as is” to mean a release from the requirements of real estate disclosure laws. In the case of lenders who foreclose on delinquent mortgages, there is, in fact, an exclusion from the requirement to disclose. But this exclusion does not excuse Realtors who withhold disclosure of known defects. The requirement to disclose all known defects is an ethical and legal imperative for all real estate agents. Withholding knowledge of a defect, such as termite damage, is not acceptable for an agent, even when the seller of the property is a bank.

In the situation at hand, the listing agent should pay to repair the undisclosed damages. If the agent does not accept that responsibility, the matter should be reported to the state agency that licenses real estate professionals. The complaint, however, should be filed by the buyers, not by another agent.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: The home I am buying has a buried fuel tank. This was disclosed by the sellers and their agent weeks after we entered the transaction. At first, they said the tank is made of fiberglass and is only five years old. When my agent and my attorney asked for documentation, the sellers offered to provide it on the day the transaction closes. We asked that it be provided on the day of the final walk-through, but they did not have the papers on that day. Instead, they admitted that the tank is actually 38 years old and is made of steel. If I cancel the deal now, I could lose my deposit. What can I do? Maryann

Dear Maryann: The sellers and their agent have been less than forthright in their disclosures about the fuel tank. First they said that the tank is fiberglass and only five years old, while attempting to withhold documentation till the last day of the transaction. By then, the time for consideration would have passed. On the day of the final walk-through, they reneged on the documents and admitted that their original tank disclosures were false.

In view of their misleading disclosures, you should be able to cancel the transaction without losing your deposit. Check with your attorney to see if this is correct.

If you wish to proceed with the purchase, the closing date should be extended until the true age and condition of the tank can be substantiated. The seller and agent should not complain about an extension because it was their lack of transparency that created this problem.

A critical consideration is the potential for soil contamination and a costly environmental clean-up. A steel fuel tank that has been buried for decades is likely to have rust damage. Fuel seepage into the ground involves serious financial liability. Therefore, an environmental assessment of the tank should be conducted by a qualified, licensed professional, and your purchase of the property should be contingent on the outcome of that evaluation

Proceed with caution if you remain in this transaction. Besides the risk of a costly environmental clean-up, you are dealing with sellers whose credibility can no longer be trusted. Therefore, you should insist upon full and accurate disclosures regarding the fuel tank. At this point, that is essential and should not be subject to debate.

If for any reason you have not already hire a qualified home inspector, now is the time to do so. Who knows what other defects have also been concealed?

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: We are buying a home and have received the sellers’ disclosure statement. The sellers say they received an insurance payment for hail damage on the roof, but they admit that the repairs were never done. We have two questions about this: Did the sellers commit insurance fraud by receiving payment for roof damages, without completing the repairs?  And, are the sellers obligated now to repair the roof?  Jen

Dear Jen: The sellers would only be guilty of insurance fraud if the claim for hail damage had been false. If the insurance company paid for actual damages, then the sellers had the choice to spend the money on repairs or to accept the money as compensation for the loss. What matters in this case is that the sellers honestly disclosed that there are unrepaired roof damages.

The sellers are currently under no obligation to repair the roof, although you can request repairs as part of your negotiations with them. What is needed now is a professional evaluation of the roof by a qualified home inspector or roofing contractor. Once you know the extent of the damages, you can decide whether repair or replacement of the roof is needed. With this information, you’ll be better prepared to negotiate with the sellers.

The House Detective:  by Barry Stone, Certified Home Inspector

Dear Barry: I bought a small commercial building about 4 years ago. Recently, I discovered evidence that there was once a fire in the basement. This was never disclosed by the seller. Now the seller says that the tenant in the building had the fire, but the seller provided no details. I have just listed the property for sale and don’t know what I should disclose to buyers. What do you recommend?  Mary

Dear Mary: If the fire was a substantial one, the fire department was probably called, and an insurance claim may have been filed. In that case, the fire department would have an official report of the event. Therefore, you should check with the local fire authorities to see what their records show.  If they have a fire report on file, it may indicate whether the owner of the building was aware of the situation. You should also ask the seller to provide the name and policy number of the insurance company so that you can learn what claims may have been made.

If the fire department and the insurance company were never notified, then the fire may have been small and the damages cosmetic in nature. In that case, you should disclose to future buyers of the property as much as you know about the situation and about your unsuccessful attempts to learn more. You should also hire a professional inspector to evaluate the condition of the property, including the fire evidence in the basement.

Dear Barry: Construction of our new home was recently completed, but four days before the closing, vandals broke into the house. They stopped up all of the drains and turned on the faucets. The builder found the mess in the morning. He immediately replaced the carpeting and some of the drywall, but he dismissed the possibility of mold. We are confident that he can repair all of the water damage but are concerned about future health issues in the home. Because of this, we may walk away from the transaction. Do you think we are overreacting?  Ken

Dear Ken:Your concerns about mold are reasonable, but this should not become a deal-killing point of contention. Mold may or may not be an issue in this situation, but the matter needs to be determined, one way or the other.

Mold typically occurs when there is a prolonged moisture condition. In this case, the moisture may have been addressed before mold had a chance to develop. A mold report would provide the answer to that question, and the builder should be willing to go that extra step to resolve your final concerns in the aftermath of the vandalism. Instead of dismissing the issue, he should hire a qualified mold inspector to evaluate the property and provide a comprehensive mold report.

Aside from the health effects of mold, there is another consideration in this matter: the issue of future disclosure. Flooding of the home is now a part of the property’s history. When you eventually sell the home, this will need to be disclosed to future buyers. A clean mold report can prevent that disclosure from raising major concerns. On that basis, the question of mold needs to be answered by a qualified professional.