Dishonesty on Property Disclosure & Home Inspector "Dropping the Ball"

[NickyChickie]

What is the name of your state (only U.S. law)? New Mexico

I purchased a home through a realtor a few days ago. I went through all the formal motions have all my necessary inspections after reviewing the property disclosure with my home inspector.

Upon moving into the home, it was discovered that the hot water heater was 16 years old and no longer functioning due to age and years of build up from hard water sediment.

My home inspector overlooked this detail and agreed to reimburse me the full fee for his inspection to help offset the cost of replacing the water heater, which was $800.

I understand within my real estate contract, that I must go through the motion of litigation before filing any small claims in court.

I had contacted the seller by phone directly to ask "were you aware that the hot water heater was not functioning?" she would not answer the question and hung up the phone on me. I followed up email between my realtor, her realtor (stating that I hold both the home inspector and her responsible, as the inspectors lack of diligence was partly to cause, however the seller's lack of honesty on the property disclosure - question about problems with plumbing and domestic hot water problems, was answered "No". Got a response from her that I should address this issue with my home inspector, which I already had done and had stated in my email.

At this point I am contemplating my response and would truly like to avoid meditation - just to keep this very simple. Maintaining Email contact, while reminding the seller of the law, my rights and legal costs, etc will be my bargaining tools.

Yesterday, I cut open the hot water heater and video taped and photographed several inches of concrete-like mineral build up at the bottom of the water heater. It was obvious that it had never been drained in it's life and no wonder there was no hot water being produced, despite a healthy pilot light and other mechanisms. Obviously, it was not producing hot water for a very long time.

My first question is:

1. Since it is obvious that there is extensive mineral build up in the hot water heater, through the evidence, showing that the flame could not heat the water - can I hold the seller liable for their statement on the property disclosure regarding problems with domestic hot water? -- Is this fraud in any way, on the sellers behalf?

2. What is the law in New Mexico about dishonesty on a property statement?

3. What are my rights as the buyer now that the closing has completed, contracts have been signed, the home inspector returned their fees, etc?

Any help and guidance is deeply appreciated.

Thank you.

Nicky & Chickie

 

[justalayman]

My home inspector overlooked this detail and agreed to reimburse me the full fee for his inspection to help offset the cost of replacing the water heater, which was $800.

what was $800; the new water heater or the inspection fee?

At this point I am contemplating my response and would truly like to avoid meditation

I think meditation would be a good thing for you. You need to understand that anything you do in court is going to cost you money. After all, all you are talking about is a water heater. Since you already have the inspectors fee, I would think that the difference that you would be suing for would be eclipsed by the legal fees you would have to pay. Yes, you can ask for your legal fees but unless it is written into your contract, there is no promise you will get them.

 

[Zigner]

Take the $800 and get yourself a nice water heater. Problem solved.

As for the "...it was obvious" bit: If it were so obvious, then why did YOU miss it? Not to mention the home inspector.

 

[Zigner]

I think meditation would be a good thing for you.

I do too -

Perhaps after a period of reflection and meditation, the OP will see that it will be easier and (in the long run) likely cheaper to use the refund from the home inspector to pay for a new water heater.

 

[NickyChickie]

what was $800; the new water heater or the inspection fee?


I think meditation would be a good thing for you. You need to understand that anything you do in court is going to cost you money. After all, all you are talking about is a water heater. Since you already have the inspectors fee, I would think that the difference that you would be suing for would be eclipsed by the legal fees you would have to pay. Yes, you can ask for your legal fees but unless it is written into your contract, there is no promise you will get them.

-- To clarify, the new water heater replacement was $800.00. The home inspector fee reimbursed to me was only $363.80.

I have a few reasons why I'd like to avoid meditation.

1. the cost to meditate on the buyers end is $150.00 - (I'm trying to recoup $436.20 from the seller.)

2. In New Mexico, the seller has the right to decline meditation, which I have a strong feeling at this point they will.

3. I am only holding the seller / inspector liable for only $800 out of $1600 - because the home was fueled on propane. There was a dangerous carbon monoxide and pressure problem with the propane system and a safety decision was made to convert the water heater to electric after the propane company dropped the ball on their inspection as well.

(I have been through fantastic expense and stress over the past week). -- Knowing my rights and the law about sellers disclosure will give me negotiation weight to perhaps intimidate the seller to agreeing to pay the few hundred dollars to help offset what little I am asking for in fairness.

 

[NickyChickie]

I would also like to add that I have reached out to 4 attorneys in my area who are not willing to help me due to the amount of money I am trying to recoup. "its just not worth their time"

I have a phone call in, to a free legal organization at this time, awaiting a call back... with hopes it will be worth someones "free" time!

 

[NickyChickie]

Take the $800 and get yourself a nice water heater. Problem solved.

As for the "...it was obvious" bit: If it were so obvious, then why did YOU miss it? Not to mention the home inspector.

there's nothing to take - I was only reimbursed $363.80 from the home inspector yesterday and cannot recoup the rest from the home seller YET - I need to know my rights and the law so I can quote that in an email as weight.

i have already got the new water heater and had it installed immediately. it was bad enough going the whole memorial day weekend without hot water and when i tried to heat hot water on the stove for a bath, i was over come by carbon monoxide because the pressure was messed up on the propane system that powered the stove. needless to say, all propane appliances have been removed from the home now and replaced with electric but at a FANTASTIC expense.

In so far as my missing it, I hired a home inspector it was his job while in the home for 4 hours....and I was not in the home long enough ever to catch it. It takes roughly an hour for a hot water heater to warm up when turned on for the first time.

It was not until I moved in and was in the home for a few hours that I realized that the heater was not working. Just yesterday, I cut the tank open to reveal WHY!

 

[Zigner]

The best advice is for you to sue the bad guy in small claims court. I think you DO have a decent case, but I tend to play Devil's Advocate

 

[NickyChickie]

I still need to know what the law is before I waste any more of my time or energy.

I'm scouring the internet trying to find either Federal Law or New Mexico Law on Property Disclosure and Seller Fraud.

I feel as though this might be the best verbiage to quote to create intimidation, along with my soon to be posted youtube video of the cutting open of the water heater and photographs of the sediment pouring out of the tank.

If I can present these two weighty pieces of evidence to the seller, it may make them say "OH S.....t! - I'm busted "

 

[Zigner]

I still need to know what the law is before I waste any more of my time or energy.

I'm scouring the internet trying to find either Federal Law or New Mexico Law on Property Disclosure and Seller Fraud.

I feel as though this might be the best verbiage to quote to create intimidation, along with my soon to be posted youtube video of the cutting open of the water heater and photographs of the sediment pouring out of the tank.

If I can present these two weighty pieces of evidence to the seller, it may make them say "OH S.....t! - I'm busted "

Or, perhaps, the water heater was working great when it was turned off, but the lack of heating allowed the sediment to settle and harden.

 

[NickyChickie]

Or, perhaps, the water heater was working great when it was turned off, but the lack of heating allowed the sediment to settle and harden.

I can assure that it was not working properly as the average life of a gas water heater is only 8-10 years - even less when subjected to sediment. Heating the sediment is not a factor - I confirmed this through several professional plumbers. This water heater is 16 years old. The type of sediment in well water is a calcium based mineral that is very heavy. The moment well water is flowing into the appliance, the mineral begins to settle immediately. It's when it's piled up several inches it turns into a cement like substance and prevents the flame from heating the water effectively.

You ever live in a place that has hard water? You'll see on your sinks, tub, faucet fixtures a white substance? That is limestone - essentially the calcium I am speaking of. It destroys plumbing and people with hard water should drain their hot water tanks at the very least - annually to drain out the mineral.

I had my water tested and had to buy a water softening system to prevent this mineral build up in my new appliances.

To further back this... when I called the seller on Friday and asked her a single question "were you aware that hot water heater is not heating the water?" she skated around the question, became very nervous and referred back to my home inspection - I had to reask the question, keeping focus on not offending the women but getting a simple "yes or no" from her - which she did not provide, after stating "I don't know, I have to ask my realtor" - I then asked "Did you not live in this home?". Then challenged me to say "How did you get my phone number!" - with a polite response I said it was on the sellers agreement and I had permission from her realtor to contact her directly already. She insisted firmly on hanging up at that time to call her realtor.

Which leads us to where we are today with getting to the root of finding out what the law states and avoiding speculation by focusing on the facts.

 

[Zigner]

Sue the bad guy in small claims court. There is not really much else to say.

 

[nextwife]

If I buy a place and the water heater is more than seven years old, I automatically PRESUME I could incur the cost of a water heater replacement. The first thing I do after looking over the foundation and electric boxes is find the age on the mechanicals.

At 16 years, it's almost a given. Regardless of whether it is producing hot water now, it could go tomorrow.

 

[justalayman]

-- To clarify, the new water heater replacement was $800.00. The home inspector fee reimbursed to me was only $363.80.

I have a few reasons why I'd like to avoid meditation.

1. the cost to meditate on the buyers end is $150.00 - (I'm trying to recoup $436.20 from the seller.)

2. In New Mexico, the seller has the right to decline meditation, which I have a strong feeling at this point they will.

3. I am only holding the seller / inspector liable for only $800 out of $1600 - because the home was fueled on propane. There was a dangerous carbon monoxide and pressure problem with the propane system and a safety decision was made to convert the water heater to electric after the propane company dropped the ball on their inspection as well.

(I have been through fantastic expense and stress over the past week). -- Knowing my rights and the law about sellers disclosure will give me negotiation weight to perhaps intimidate the seller to agreeing to pay the few hundred dollars to help offset what little I am asking for in fairness.

first, and I thought it was a type but apparently it isn't but the word is: mediation, not meditation.

So, the water heater was $800. That's a pretty pricey water heater to start with especially seeing it is electric. The seller is only liable for, at most, the cost of the heater. They will not be liable for changing to electric. That was your choice and is on you so we are stuck at $440.

What the seller would be liable for, again, at most, is what it would cost to replace the gas water heater with a like unit and nothing more. (if that is more or less than $440, you would have a reasonable argument for only as much as a like replacement would cost)

Let's presume the seller refuses mediation. Are you planning on doing this pro se in small claims?

So, was the water heater not producing any hot water?

 

[justalayman]

it was bad enough going the whole memorial day weekend without hot water and when i tried to heat hot water on the stove for a bath, i was over come by carbon monoxide because the pressure was messed up on the propane system that powered the stove. needless to say, all propane appliances have been removed from the home now and replaced with electric but at a FANTASTIC expense.

this makes absolutely no sense. With propane, there are 2 regulators before the fuel even enters that house. Then there are regulators on each appliance. If there was a pressure problem, the remedy is to replace whatever regulator is defective, not all of the appliances. Most times the regulators outside of the home belong to the gas supplier if it is a large tank. As such, they replace those regulators for free since they are theirs. Then, that leaves the reg on the stove. Maybe $100-$200 tops. Most likely less, if it even needs to be replaced. Of course, if one of the primary regulators was bad, you wouldn't know if the reg in the appliances was bad or not until you fixed the primary regulators.

It's kind of odd that you would have so much problem of being overcome with CO yet the seller lived there and is apparently still alive.