Seller Failed to Disclose Active Termines - can we back out?

[robyncita]

What is the name of your state? MA
We have a purchase agreement for a home in So. Carolina that is expected to close on 6/24. Just found out through the termite inspection done by the seller that there is proof of prior termite infestation and active termite infestation (the seller did not disclose to us in their disclosure form). The purchase agreement basically says that if the seller agrees to treat and make repairs then the buyer can't back out. We can only back out if they don't make repairs. The seller is treating the whole house but we are concerned of damage that can't be seen in inaccessible areas. Their exterminator found "minor damage" in garage but it states that some areas were inaccessible. We are feeling very uneasy and have ordered our own inspection by a structural engineer, but we want to back out but fear we will not get our earnest money back as our realtor says it is a grey area! Any advice would be greatly appreciated.

[HomeGuru]

Originally Posted by robyncita

What is the name of your state? MA
We have a purchase agreement for a home in So. Carolina that is expected to close on 6/24. Just found out through the termite inspection done by the seller that there is proof of prior termite infestation and active termite infestation (the seller did not disclose to us in their disclosure form). The purchase agreement basically says that if the seller agrees to treat and make repairs then the buyer can't back out. We can only back out if they don't make repairs. The seller is treating the whole house but we are concerned of damage that can't be seen in inaccessible areas. Their exterminator found "minor damage" in garage but it states that some areas were inaccessible. We are feeling very uneasy and have ordered our own inspection by a structural engineer, but we want to back out but fear we will not get our earnest money back as our realtor says it is a grey area! Any advice would be greatly appreciated.

**A: you already answered your own question.

[robyncita]

MA

Not sure what you mean?

[HomeGuru]

**A: here it is:


[quote=robyncita]What is the name of your state? MA
The purchase agreement basically says that if the seller agrees to treat and make repairs then the buyer can't back out. We can only back out if they don't make repairs.

[robyncita]

MA

But what about their failure to disclose? We would never have put in an offer if they had disclosed there were prior termites and existing termites.

[BradleyS]

Questions:

1. How could the Seller know about the termites?

2. Can you prove the Seller knew about the termites?

3. What does the purchase contract state about disclosure?

Good move on the engineer....you might want to get additional engineer reports. If repairs need to be made, read your contract on the process......some contracts have a "Percentage" damage to void the contract.

Additionally, termites are not uncommon in and around wood. You can't walk 50' in any direction without walking over a termite colony. They are a part of our world and they are here to stay.....if structure is ok......treat and monitor.....unless a house is made out of steel and concrete......wood infestation insects WILL find every home......eventually.

[robyncita]

1. IF my inspector can make a determination on how old the pre-existing termites and damage is and tie it into the time they owned the home, then we know they were lying. The area has been previously treated so we are tying to find out if they ordered the treatment. If they did, then they lied on the disclosure. This should be enough for us to get out of the contract and get our earnest money back.

I realize there are termites everywhere, but why weren't they upfront about it instead of hiding the fact. What more is there to hide? Hopefully we'll find out with our inspection next Tuesday.

Thanks for your advice

[BradleyS]

There is an old saying in real estate......

Buyers are liars....and seller's never tell the truth!!!

Even if you could prove they knew......they will probably act stupid and say they forgot about it.

Unless there is a structual issue.....you might plan on purchasing the house or face possible litigation from the seller.

Additionally, disclosure has been provided. The contract has not closed and you are now aware of the problem.

In most states, the transaction must be completed before any fraud can be even considered.

This is the SC Law on disclosure....

[url]http://www.scstatehouse.net/code/t27c050.htm[/url]

These two statutes pertain to your situation**************......

SECTION 27-50-60. Corrected disclosure statements; reasonable repairs before closing.

If the owner discovers, after his delivery of a disclosure statement to a purchaser, a material inaccuracy in the disclosure statement or the disclosure is rendered inaccurate in a material way by the occurrence of some event or circumstance, the owner shall correct promptly the inaccuracy by delivering a corrected disclosure statement to the purchaser or make reasonable repairs necessitated by the occurrence before closing.


SECTION 27-50-65. Knowing disclosure of false, incomplete, or misleading material information; civil liability; attorney fees.

An owner who knowingly violates or fails to perform any duty prescribed by any provision of this article or who discloses any material information on the disclosure statement that he knows to be false, incomplete, or misleading is liable for actual damages proximately caused to the purchaser and court costs. The court may award reasonable attorney fees incurred by the prevailing party.

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I could not find anything about voiding/breaking the contract....but look for yourself.