Basement Small Claim

[mrsabba]

What is the name of your state? Ohio

We purchased a home on November 19, 2004 but did not move into the home until January 7, 2005. The seller of the home is a realtor but she did not sell or list through her real estate company. We had our own realtor.

This home has a finished basement with metal studs, vapor barrier and painted drywall walls and a cement floor covered with padding and berber carpeting.

The homeowner stated in the disclosure statement, "Do you know of any movement, shifting, deterioration, material cracks/settling (other than visible minor cracks or blemished) or other material problems with the foundation, basement/ crawl space, floors or interior/exterior walls?" The "No" box is checked.

After checking with the city after reviewing the disclosure statement we found that there had been a water backup in the basement in April 2000, which is within the 5-year time period that the disclosure statement encompasses. We were told by the seller/realtor they had forgotten about that.

In July of 2004 we had a home inspection done. At that time the comments on the inspection report regarding the basement were, "Finish materials limit access to view original foundation and framing in areas."

We cleaned the home before moving and my mother-in-law found heavily rusted paint cans in the southeast corner of the basement. In the southwest corner of the basement (which was covered by a huge corner entertainment unit by the seller) the painted baseboard had some staining on it and bubbling.

After a heavy snow and quick thaw and rain, on January 14 we discovered dampness along the south wall of the basement which resulted in wet padding and carpeting in a 4 foot by 9 foot area. (I have video of this and subsequent occurrances)

On February 8 and February 20 and 21 we again had water problems and I pulled the baseboard off and carpeting up which revealed standing water on the floor at the base of the wall. On these occasions the water entry occurred after periods of slight rainfall.

We called a waterproofer and he gave us an estimate of $3,000 to remedy the problem along the south wall.

We had the work done on July 5, 2005. When the wall was excavated there was a horizontal crack along the entire foundation approx 2-3 feet above the footers and there were several vertical cracks at each corner. (I have photographs)
The waterproofer said the following:
"We excavated down to the footer around the foundation of the back wall of the house. We found corrugated drain tiles enclosed with about eight inches of gravel which over the years had fused around the pipe like concrete, therefore not allowing water to drain through the pipees and built up around the wall, seeping through serveral cracks in the foundation to the inside of basement. The yard drain tiles at South/West corner of the house were not connected properly and were leaking.
"It is our opinion that the water problem has been existing for a few years, based on the condition of the drain tiles and the cracks in the wall."

We also had a termite problem in the area of the south wall (another post will follow on that) and we are going to present evidence regarding that, too, to bolster the pre-existing water condition in the basement.

We are debating whether to go to the Sellers first by mail to handle this outside of court. Do you think that's a good thing to do?

Or should we just go straight to court?

Do you think the small claims court will rule for us based on the information I've given you? I know the burden is on us to prove prior knowledge.

I think the seller lost her credibility with the fact that she forgot to disclose the prior water problem and the fact that she would not sell her house with her own real estate company (she and her mom work together) but instead sell By Owner.

Your expert opinion is appreciated.

[Samm1970]

I've had success settling out of court by contacting the seller first in writing. My experience required that I negotiate somewhat on the settlement amount which I was willing to do since I didn't want to got to court either. Sounds like you have plenty of evidence and documentation. Make sure to advise the seller of this. The seller will likely settle to avoid the pain and potential cost of going to court. The letter should be polite and respectful. It's purpose is to sway the seller into your way of thinking, which is settling out of court. List the benefits of settling and possibilities of not settling i.e. time and more money. Also make sure the letter is clear about your intention to go to court if a settlement is not reached and the damages you seek if forced to go to court will be greater than if a settlement is reached.

Good luck!

[Samm1970]

I've had success settling out of court by contacting the seller first in writing. My experience required that I negotiate somewhat on the settlement amount which I was willing to do since I didn't want to got to court either. Sounds like you have plenty of evidence and documentation. Make sure to advise the seller of this. The seller will likely settle to avoid the pain and potential cost of going to court. The letter should be polite and respectful. It's purpose is to sway the seller into your way of thinking, which is settling out of court. List the benefits of settling and possibilities of not settling i.e. time and more money. Also make sure the letter is clear about your intention to go to court if a settlement is not reached.

Good luck!

[HomeGuru]

Originally Posted by mrsabba

What is the name of your state? Ohio

We purchased a home on November 19, 2004 but did not move into the home until January 7, 2005. The seller of the home is a realtor but she did not sell or list through her real estate company. We had our own realtor.

This home has a finished basement with metal studs, vapor barrier and painted drywall walls and a cement floor covered with padding and berber carpeting.

The homeowner stated in the disclosure statement, "Do you know of any movement, shifting, deterioration, material cracks/settling (other than visible minor cracks or blemished) or other material problems with the foundation, basement/ crawl space, floors or interior/exterior walls?" The "No" box is checked.

After checking with the city after reviewing the disclosure statement we found that there had been a water backup in the basement in April 2000, which is within the 5-year time period that the disclosure statement encompasses. We were told by the seller/realtor they had forgotten about that.

In July of 2004 we had a home inspection done. At that time the comments on the inspection report regarding the basement were, "Finish materials limit access to view original foundation and framing in areas."

We cleaned the home before moving and my mother-in-law found heavily rusted paint cans in the southeast corner of the basement. In the southwest corner of the basement (which was covered by a huge corner entertainment unit by the seller) the painted baseboard had some staining on it and bubbling.

After a heavy snow and quick thaw and rain, on January 14 we discovered dampness along the south wall of the basement which resulted in wet padding and carpeting in a 4 foot by 9 foot area. (I have video of this and subsequent occurrances)

On February 8 and February 20 and 21 we again had water problems and I pulled the baseboard off and carpeting up which revealed standing water on the floor at the base of the wall. On these occasions the water entry occurred after periods of slight rainfall.

We called a waterproofer and he gave us an estimate of $3,000 to remedy the problem along the south wall.

We had the work done on July 5, 2005. When the wall was excavated there was a horizontal crack along the entire foundation approx 2-3 feet above the footers and there were several vertical cracks at each corner. (I have photographs)
The waterproofer said the following:
"We excavated down to the footer around the foundation of the back wall of the house. We found corrugated drain tiles enclosed with about eight inches of gravel which over the years had fused around the pipe like concrete, therefore not allowing water to drain through the pipees and built up around the wall, seeping through serveral cracks in the foundation to the inside of basement. The yard drain tiles at South/West corner of the house were not connected properly and were leaking.
"It is our opinion that the water problem has been existing for a few years, based on the condition of the drain tiles and the cracks in the wall."

We also had a termite problem in the area of the south wall (another post will follow on that) and we are going to present evidence regarding that, too, to bolster the pre-existing water condition in the basement.

We are debating whether to go to the Sellers first by mail to handle this outside of court. Do you think that's a good thing to do?

Or should we just go straight to court?

Do you think the small claims court will rule for us based on the information I've given you? I know the burden is on us to prove prior knowledge.

I think the seller lost her credibility with the fact that she forgot to disclose the prior water problem and the fact that she would not sell her house with her own real estate company (she and her mom work together) but instead sell By Owner.

Your expert opinion is appreciated.

**A: time to hire an attorney.

[mrsabba]

Are we hiring an attorney because proving the case in small claims will be tough?

Or are we hiring an attorney to write a letter?

We really just want the $3,000 that we paid for the work.

We're probably going to file a separate small claim for the pest problem.

[HomeGuru]

Originally Posted by mrsabba

Are we hiring an attorney because proving the case in small claims will be tough?

Or are we hiring an attorney to write a letter?

We really just want the $3,000 that we paid for the work.

We're probably going to file a separate small claim for the pest problem.

**A: you have a regular clains action.

[mrsabba]

We sent a demand letter to the sellers asking for payment in full ($3,000) for the waterproofing repairs. They did not respond in a timely fashion and we filed a small claims action. Court date is 11-4.

One day after filing we received a Cert. letter from the Sellers' attny. saying,
"I am sure you are aware that the burden of proof is difficult to satisfy in this matter. Furthermore, the cost to litigate for both parties would not justify the end result, as neither party is guaranteed to prevail in litigation.
"Therefore, taking into consideration the factors as outlined herein, the Sellers have authorized me to offer you $1,500 to settle this matter, subject to your execution of a waiver of all claims, of any nature, in regards to the home. This offer is non-negotiable and will remain valid 10 days from receipt herein."

We are unconfortable signing a waiver for just half of the money. We have incurred additional expenses as a result of the water damage that we haven't even asked for - regrading, landscaping, new gutters, carpet cleaning, painting and installing new baseboard. Plus we still have termite damage that has not been fixed in the same area as the basement leak.

We have countered with $1,500 and no waiver, OR $3,000 and a waiver.
After all, EVERYTHING is negotiable.

Thoughts?????