Fraudulent Builder / Realtor

[angry_homebuyer]

What is the name of your state? MN

My wife and I bought this property in the spring of 2003. It is a very well appointed 2-story in a
very nice (expensive) neighborhood - certainly not one where you would expect to have to deal
with issues normally associated with less expensive housing, such as railroad traffic.

We bought it brand new (it was being shown as a model) directly from the builder. We made
the mistake (in hindsight) of agreeing to dual agency, i.e. the realtor supposedly represented
the seller (the builder) and ourselves.

The property backs up to a regional park, which is even promoted in their advertising (I have
a printout of the house listing from the builder's website). Based on that, and our own observations, we thought "wow, this is beautiful, it backs up to the woods! quiet.. privacy, etc".
NOT QUITE.

Just days after closing, as we were unpacking boxes, I heard an incredibly loud horn sound that
made me jump. I thought "what the hell was that?!" It turned out to be the source of our misery
for the last 2.5 years -- the damn train line that runs just beyond the grove of trees beyond our
fence. The obvious question is, "how could you not know about train tracks so close to your
house?". Well, believe me, when you look out of any of our windows facing the park, you would
have NO idea, or reason to believe, that a very noisy train line, runs there. It just looks like a
beautiful backyard with a pond, that backs up to a heavily wooded park.

One thing that complicated the situation was, as we headed into the summer, the traffic started
to decrease considerably, and so I thought maybe this was temporary, and isn't such a big deal.
So I went ahead with putting a deck on the house, landscaping, sprinkler system, etc. All of those
improvements cost upwards of about $20k.

I now know, after having lived there for over 2 years, that the heavy traffic is seasonal - mostly
in the early spring and late fall. I was shocked all over again, in the fall of '03, when the trains
were in full force again, not only sounding their whistles at all times of day AND night, but also
SHAKING THE ENTIRE HOUSE LIKE A ####ING EARTHQUAKE! We were totally in shock.

I know for a fact that the realtor was holding open houses at the property between February and
April (when we closed), so there is *absolutely* no way he was unaware of the train and the
impact it had on the house.

I know that the non-disclosure statute (which was toughened in 2003) says something to the
effect that the seller "must disclose ANYTHING that could adversely affect the buyer's use AND
ENJOYMENT of the property". You think a damn train line keeping people up at night and non-
stop noise would affect enjoyment of the property??? Ya think?

So, after talking to some real estate attorneys, why does it seem that builders have some kind
of loophole in this regard?

If this weren't a slam dunk already, I ran into that fraud of a realtor a year or so ago at a local
restaurant. I should get an award for not beating him senseless in the first place.. Anyway,
I made some smalltalk with him, and then got on the subject of our property. When I mentioned
it would have been nice to know about the train, since it's so annoying, he said something to
the effect that "oh yeah, I knew that train was there, but I didn't know it was a problem". Sorry,
jackass, it is a problem. But, right there, he did admit that he was aware of the train, which he
never said a WORD about during the whole buying process. Best of all, I have that whole
conversation recorded on my palm pilot.

We're selling the house now, at a loss. There is absolutely NO WAY we would have purchased
it with even the knowledge that tracks existed back there, much less the effect of the traffic.

How do I recover the $40-$50k we are effectively losing (our baby daughter's college savings
are GONE) because of this deception, as well as make sure that the builder and realtor never do business in MN again?

I should also mention that as my wife and I have walked around the neighborhood and talked
to other homeowners, we were not the only ones to get this "surprise" from the builder/realtor.
Would a class action suit be viable? Even if they didn't all have the same builder/realtor?

Sorry this is so long - I just wanted to make sure I provided every relevant detail so that you real
estate experts have enough information to come to a conclusion.

Please help! This situation has absolutely screwed with our lives over the past couple of years..

Thanks

[dallas702]

Your problem might be in establishing what is an acceptable level of noise. You'll need a professional (for certification purposes) to come out and do a noise survey inside and outside the home. Then, you'll need statements from all your neighbors to prove that it bothers anyone besides just you. What is unacceptable noise to you might be ok with everyone else. That's where it gets subjective.

My grandfather had a rail running about 50 yards from his front yard. Most of the time it was dead quiet out there, and fortunately it was a downhill rail (foothills of Sierra Nevada Mtns--CA) so the trains did pass quickly. When I stayed for long visits the noise seemed bad the first few nights, but after that I hardly noticed. One summer the SP shut down the line for maintenance for about 10 days and the silence was deafening.

The point is, any damages you seek will be measured by more than just how much it bothers you. Also, if you sell the house for whatever the market usually bears you would not be considered injured. The 2.5 years of occupancy is a problem, too. A suit by all of the owners might have a better chance, but either way you could be talking years of litigation....expensive litigation. Since you have talked to some RE attorneys about the non-disclosure statute without feeling secure in taking action, I'm not sure what you're looking for. You could go directly to your state's AG office (consumer affairs, or whatever they call it) and see what they say. You could also go find a pit bull personal injury lawyer. They are more attuned to finding ways to recover damages like yours than RE lawyers.

I wish you success, but it may be hard. I once looked at a home in Edgemont, CA (near Riverside/San Bernadino). It was a nice, quiet neighborhood with close proximity to March AFB where I had just been reassigned. Great, I thought...until I came back at 5:15 to see what the street looked like as people returned from work. When the 13 B-52s and 13 KC-135s took off right over the top of us, and I realized that the end of runway was only about 1 mile away I never returned. But heck, it was only 3 times a day. I don't know how the rest of the owners stayed, but it didn't seem to bother them.

[pojo2]

Take your post (it seems familiar to another, you change names and repost?) and take out the irrevalent information (unpacking boxes etc.) and shorten the post and it may get you other responses.

[HomeGuru]

Originally Posted by angry_homebuyer

What is the name of your state? MN

My wife and I bought this property in the spring of 2003. It is a very well appointed 2-story in a
very nice (expensive) neighborhood - certainly not one where you would expect to have to deal
with issues normally associated with less expensive housing, such as railroad traffic.

We bought it brand new (it was being shown as a model) directly from the builder. We made
the mistake (in hindsight) of agreeing to dual agency, i.e. the realtor supposedly represented
the seller (the builder) and ourselves.

The property backs up to a regional park, which is even promoted in their advertising (I have
a printout of the house listing from the builder's website). Based on that, and our own observations, we thought "wow, this is beautiful, it backs up to the woods! quiet.. privacy, etc".
NOT QUITE.

Just days after closing, as we were unpacking boxes, I heard an incredibly loud horn sound that
made me jump. I thought "what the hell was that?!" It turned out to be the source of our misery
for the last 2.5 years -- the damn train line that runs just beyond the grove of trees beyond our
fence. The obvious question is, "how could you not know about train tracks so close to your
house?". Well, believe me, when you look out of any of our windows facing the park, you would
have NO idea, or reason to believe, that a very noisy train line, runs there. It just looks like a
beautiful backyard with a pond, that backs up to a heavily wooded park.

One thing that complicated the situation was, as we headed into the summer, the traffic started
to decrease considerably, and so I thought maybe this was temporary, and isn't such a big deal.
So I went ahead with putting a deck on the house, landscaping, sprinkler system, etc. All of those
improvements cost upwards of about $20k.

I now know, after having lived there for over 2 years, that the heavy traffic is seasonal - mostly
in the early spring and late fall. I was shocked all over again, in the fall of '03, when the trains
were in full force again, not only sounding their whistles at all times of day AND night, but also
SHAKING THE ENTIRE HOUSE LIKE A ####ING EARTHQUAKE! We were totally in shock.

I know for a fact that the realtor was holding open houses at the property between February and
April (when we closed), so there is *absolutely* no way he was unaware of the train and the
impact it had on the house.

I know that the non-disclosure statute (which was toughened in 2003) says something to the
effect that the seller "must disclose ANYTHING that could adversely affect the buyer's use AND
ENJOYMENT of the property". You think a damn train line keeping people up at night and non-
stop noise would affect enjoyment of the property??? Ya think?

So, after talking to some real estate attorneys, why does it seem that builders have some kind
of loophole in this regard?

If this weren't a slam dunk already, I ran into that fraud of a realtor a year or so ago at a local
restaurant. I should get an award for not beating him senseless in the first place.. Anyway,
I made some smalltalk with him, and then got on the subject of our property. When I mentioned
it would have been nice to know about the train, since it's so annoying, he said something to
the effect that "oh yeah, I knew that train was there, but I didn't know it was a problem". Sorry,
jackass, it is a problem. But, right there, he did admit that he was aware of the train, which he
never said a WORD about during the whole buying process. Best of all, I have that whole
conversation recorded on my palm pilot.

We're selling the house now, at a loss. There is absolutely NO WAY we would have purchased
it with even the knowledge that tracks existed back there, much less the effect of the traffic.

How do I recover the $40-$50k we are effectively losing (our baby daughter's college savings
are GONE) because of this deception, as well as make sure that the builder and realtor never do business in MN again?

I should also mention that as my wife and I have walked around the neighborhood and talked
to other homeowners, we were not the only ones to get this "surprise" from the builder/realtor.
Would a class action suit be viable? Even if they didn't all have the same builder/realtor?

Sorry this is so long - I just wanted to make sure I provided every relevant detail so that you real
estate experts have enough information to come to a conclusion.

Please help! This situation has absolutely screwed with our lives over the past couple of years..

Thanks

**A: I may respond in a couple of years**************.