Any Recourse? Statute of Lmitations?

[Trooshka]

I live in Ohio and purchased a home 5 years ago which was owned by a corporation. This was not initially made known to us; we assumed the "homeowners" were selling the property since their signatures were on the listing agreement (the corp. seized and forced the sale of the house due to an unpaid loan). We hired a home inspector (an industry unregulated/unlicensed in Ohio) who turned up nothing alarming. We closed the deal and learned about the corporate ownership at that time. AFTER title transferred, non-disclosed issues arose, the most costly being a large structure partially built (more than 2/3) on the state's abutting property (land which we were led to believe we owned). We hired a lawyer, etc., etc. Eventually, through negotiations, the corp. reduced the price accordingly and we assumed liability and took possession. But, in order to take possession, we reluctantly agreed to sign a hold-harmless with the corp. against any future defects. Also, it's important to say that as soon as we moved in, we hired a roofer to inspect the roof and cap the chimneys, etc. Nothing alarming was reported there either; he said it was a good roof and should last another 10 years. Which leads me to my current problem. Five years later, we gutted our kitchen to remodel and discovered substantial, purposefully hidden structural damage behind the wall that existed long before we ever moved in, all connected to the roof, which (unknown to us) was still leaking to that day. Upon very close inspection, there were 4 layers on the roof masterfully concealed by the previous homeowner to look like 2 layers at the gutter line.

My neighbor's insurance man insists that 4 layers is "illegal" and that our lives have been in danger all of these years of the roof collapsing. He insists that I have recourse. This house has been the epitomy of a money pit (both the well and furnace failed almost immediately when we took possession, just to name a few), and I have paid dearly for the previous homeowner's cunning and deception, but have abided by the hold-harmless we signed with the corp. whom I'm pretty sure was clueless as to what the homeowner had done. Unfortunately, the home inspector's contract was structured in such a way as to hold him harmless as well, and, obviously, the roofer we initially hired didn't do a very thorough inspection either.

This was our very first house, so we were definitely wet behind the ears (I know ignorance is no excuse). After years of shelling out thousands and thousands of dollars for major repairs, I would now definitely consider doing something legally if I thought I stood a chance. Is this situation with the roof indeed "illegal" and a "danger"? Is there a different statute of limitations if something is a danger? Could the hold-harmless be negated under the circumstances? Do I even have any recourse after all of this time? If I do, against whom? They're coming to tear off the roof today; I can't tell you how frightened I am of what they'll find. Ironically, the peak of the roof is starting to sink, so I know it can't be good. Since this damage wasn't storm-oriented, our insurance company can't/won't help with the roof.

Thanks so much for your time, and I'm sorry this was so complicated. I'm trying to avoid spending thousands of dollars on a lawyer again (I need it for the roof!), so any light you could shed would be so very greatly appreciated.

 

[HomeGuru]

I live in Ohio and purchased a home 5 years ago which was owned by a corporation. This was not initially made known to us; we assumed the "homeowners" were selling the property since their signatures were on the listing agreement (the corp. seized and forced the sale of the house due to an unpaid loan).

**My response: that is why you were supposed to review the title report. If you did not have a Realtor or real estate attorney help you with the sale, that was the start of your problem.

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We hired a home inspector (an industry unregulated/unlicensed in Ohio) who turned up nothing alarming.

**My response: although no governmental regulations for home inspectors, there are certainly industry regulations such as http://www.ashi.com. Did you interview the home inspector to make sure of his/her experience and qualifications, ask for references, was he/she certified by national home inspection associations ie. ASHI, etc., carries errors and ommissions insurance, follows national home inspection standards of practice etc.
*********************


We closed the deal and learned about the corporate ownership at that time. AFTER title transferred,

**My response: you could have found out before closing or at least during closing.
***********************


non-disclosed issues arose, the most costly being a large structure partially built (more than 2/3) on the state's abutting property (land which we were led to believe we owned).

**My response: you could have discovered this early on by getting a boundary survey from a licensed surveyor.
**********************


We hired a lawyer, etc., etc.

**My response: you should have hired the lawyer etc. way BEFORE you closed.
************************

Eventually, through negotiations, the corp. reduced the price accordingly and we assumed liability and took possession. But, in order to take possession, we reluctantly agreed to sign a hold-harmless with the corp. against any future defects.

**My response: that was not a smart thing to do as you now realize.
**********************


Also, it's important to say that as soon as we moved in, we hired a roofer to inspect the roof and cap the chimneys, etc. Nothing alarming was reported there either; he said it was a good roof and should last another 10 years. Which leads me to my current problem. Five years later, we gutted our kitchen to remodel and discovered substantial, purposefully hidden structural damage behind the wall that existed long before we ever moved in, all connected to the roof, which (unknown to us) was still leaking to that day. Upon very close inspection, there were 4 layers on the roof masterfully concealed by the previous homeowner to look like 2 layers at the gutter line.

**My response: a problem that no one knew about except the homeowner.
********************


My neighbor's insurance man insists that 4 layers is "illegal" and that our lives have been in danger all of these years of the roof collapsing.
He insists that I have recourse.

**My response: ok, so you want to listen to a neighbors insurance man acting like an attorney.
He is correct about the number of layers with respect to the building code. As far as recourse, what causes of action does he cite? How can you go after the corporation since they are an absentee owner and you waived your rights and accepted the property in as-is condition?
**********************

This house has been the epitomy of a money pit (both the well and furnace failed almost immediately when we took possession, just to name a few), and I have paid dearly for the previous homeowner's cunning and deception, but have abided by the hold-harmless we signed with the corp. whom I'm pretty sure was clueless as to what the homeowner had done.
**My response: now you are understanding something.
*********************
Unfortunately, the home inspector's contract was structured in such a way as to hold him harmless as well, and, obviously, the roofer we initially hired didn't do a very thorough inspection either.

**My response: Home inspector -I do not agree with your comments. It does not matter if the home inspection contract said, "I'm not liable for anything, my inspection has a limit of liability whcih is the inspection fee paid, etc. If the inspector is grossly negligent in his/her inspection of the property, you can sue.
If there is a binding arbitration clause in the contract, you can arbitrate.
**********************


This was our very first house, so we were definitely wet behind the ears (I know ignorance is no excuse). After years of shelling out thousands and thousands of dollars for major repairs, I would now definitely consider doing something legally if I thought I stood a chance. Is this situation with the roof indeed "illegal" and a "danger"? Is there a different statute of limitations if something is a danger? Could the hold-harmless be negated under the circumstances? Do I even have any recourse after all of this time? If I do, against whom? They're coming to tear off the roof today; I can't tell you how frightened I am of what they'll find. Ironically, the peak of the roof is starting to sink, so I know it can't be good. Since this damage wasn't storm-oriented, our insurance company can't/won't help with the roof.

Thanks so much for your time, and I'm sorry this was so complicated. I'm trying to avoid spending thousands of dollars on a lawyer again (I need it for the roof!), so any light you could shed would be so very greatly appreciated.

My response: There is most likely structural damage to the roof framing system. Keep us posted.
As far as the legal aspect:
I do not believe you even have a slight chance to prevail.

Warning: All Buyers should use a real estate agent or real estate attorney. And make sure you get a title report, survey, home inspection, building and zoning dept. public records etc. BEFORE you accept the contract and close.

 

[Trooshka]

Any Recourse? Statute of Limitations?

Thank you for your very detailed and informative reply. It was pretty much what I expected. And, just for the record, I didn't want to rely solely on the advice of an "insurance man acting like an attorney"...that's why I posted here.

Since I appear to be a complete and utter moron, I feel compelled to defend my naive actions. Perhaps someone else may learn something from my very expensive mistakes:

MISTAKE #1: Most people I know always had smooth real estate transactions and never needed an attorney, only a realtor. We expected our transaction would be the same.

MISTAKE #2: We used a friend who was a part-time realtor with several years of "experience".

MISTAKE #3: Our realtor highly recommended the home inspector we ended up using. We trusted her recommendation since she was a friend.

MISTAKE #4: We trusted our lender to protect their interest (and thereby ours) by reviewing their survey and addressing any value-reducing discrepancies BEFORE title transferred.

MISTAKE #5: The biggest one by far...we signed a hold-harmless agreement.

Our mistakes aside, I would appreciate it if you would clarify your home inspector comments. Are you saying after all of this time I still might have recourse against the home inspector, or was that information there for the benefit of other readers? Your closing comments say I probably would not prevail in a legal aspect, so I'm uncertain if that includes the home inspector as well. Please let me know. With my luck, he's probably out of business by now anyway! By the way, my roof tear-off was postponed till Monday, so your answer will dictate whether or not I'll be climbing up on the roof to take pictures as they demolish it.

Thanks again. I look forward to your response.

P.S. I am editing this reply to add this apology for my presumptuousness that you are available 24/7 to answer any questions (especially on a weekend!) and that you have time to answer me by my inferred deadline of Monday. I am truly sorry...a response at your convenience--no matter when-- would be very greatly appreciated.

[Edited by Trooshka on 07-21-2001 at 11:08 AM]

 

[faithandhope]

There is just one thing I might add to Home Guru's careful dissection. Although inspector's contracts are very standard and all but state we weren't there, gross negligence is not defendable. But take out that contract and read it before you remove or replace that roof. Some contracts state that removal or replacement before given proper reinspection or giving the inspector a chance to have a professional second opinion cancels all claim. Good Luck.

 

[HomeGuru]

Re: Any Recourse? Statute of Limitations?

Thank you for your very detailed and informative reply. It was pretty much what I expected. And, just for the record, I didn't want to rely solely on the advice of an "insurance man acting like an attorney"...that's why I posted here.

Since I appear to be a complete and utter moron, I feel compelled to defend my naive actions. Perhaps someone else may learn something from my very expensive mistakes:

MISTAKE #1: Most people I know always had smooth real estate transactions and never needed an attorney, only a realtor. We expected our transaction would be the same.

**My response: I guess you do not know most people. Or enough people. Read a couple thousand of these similar posts and you will see that their posts were not as Rob Thomas in Santana sang Smooth.
************************


MISTAKE #2: We used a friend who was a part-time realtor with several years of "experience".

**My response: Only use part-timers if they are tag team with an experienced full-timer. I would not use a part time surgeon, attorney, Karate teacher with several years eperience. I would use someone that attained almost Guru status. (Note: I may be a little biased here since my entire family is of Guru status.)
Part-time is ok as long as that Realtor has the experience and dedication of a full-time Realtor.
Stevie Wonder once sang "Part-Time Lover", but that don't work for me.
*********************

MISTAKE #3: Our realtor highly recommended the home inspector we ended up using. We trusted her recommendation since she was a friend.

**My response: Realtor friend or not a friend, you should always due your due diligence such as I previously mentioned ie. home inspection education, qualifications, experience, errors and onmmissions insurance, certification with a national home inspection association that has industry standards standards of practice, inspector's references etc.
Friend Realtor in your case is guilty and liable for a negligent and faulty third
party referral.
*********************

MISTAKE #4: We trusted our lender to protect their interest (and thereby ours) by reviewing their survey and addressing any value-reducing discrepancies BEFORE title transferred.

**My response: The lender's interest is to protect the lender's interest only.
*********************

MISTAKE #5: The biggest one by far...we signed a hold-harmless agreement.


**My response: I agree but let's review the facts.
You did not hire a real estate attorney yet you signed a legal document.
Who reviewed this agreement and advised you that it was ok to sign; your Realtor, your vet, your first year law student nephew, the person on the Psychic Hotline.....?
***********************

Our mistakes aside, I would appreciate it if you would clarify your home inspector comments. Are you saying after all of this time I still might have recourse against the home inspector, or was that information there for the benefit of other readers? Your closing comments say I probably would not prevail in a legal aspect, so I'm uncertain if that includes the home inspector as well.

**My response: That was a general comment based on the entire case against the Seller. Remember, the Corporation?
With respect to the home inspector, my opinion is that you indeed have a case against this person.
So pursue this avenue if you can.
Have your friendly Realtor help you since there is some liability because of the third party referral.
Since you will be talking to your friend the Realtor,
ask her for a copy of the Ohio State disclosure law and ask her explain why the law did not protect you when buying from a Corporation and absentee-owner.
Heck, she's your friend, so ask her to get a copy of the buidling code showing that more than 3 layers of roofing material does not conform to the building code.
********************

Please let me know. With my luck, he's probably out of business by now anyway! By the way, my roof tear-off was postponed till Monday, so your answer will dictate whether or not I'll be climbing up on the roof to take pictures as they demolish it.

Thanks again. I look forward to your response.

P.S. I am editing this reply to add this apology for my presumptuousness that you are available 24/7 to answer any questions (especially on a weekend!) and that you have time to answer me by my inferred deadline of Monday. I am truly sorry...a response at your convenience--no matter when-- would be very greatly appreciated.

[Edited by HomeGuru on 07-22-2001 at 03:03 PM]

 

[Trooshka]

FAITHANDHOPE: Thank you so very, very much for your kind response. That information was very useful and important to know.

HOMEGURU: My, my, the price we pay for free advice. I know my situation was complicated and a lot for you to take in, but if you re-read my first post, you'll see I hired a real estate attorney immediately following the survey discrepancy, prior to signing the hold-harmless. So I didn't rely on a psychic, a law student, etc. as you inferred (and was that comment really necessary regardless?) Our attorney was the one who negotiated from that point forward with the corp.'s attorneys through to the deal's conclusion. He fully advised us of the ramifications of signing the hold-harmless, but said if we wanted the house, we had to sign. So there ya go; we loved the house/location, took a huge chance and lost big time. Had I been on the internet at the time I bought the house and had this kind of information at my fingertips, I'm sure I would have proceeded differently. I could keep defending myself here, but I won't waste my time or yours.

Your demeaning comments aside, the advice portion of your replies was greatly appreciated.

[Edited by Trooshka on 07-23-2001 at 10:25 AM]

 

[HomeGuru]

Thank you for your comments.

 

[Trooshka]

Ohio Adverse Possession Question

Per your instructions, HomeGuru, I've copied my different question posted in General Real Estate Law to this, my initial thread...your guidance would be greatly appreciated.
============================================================
(Ohio) I was very alarmed when reading other posts about adverse possession. As described in my other post, I had many problems buying my property, the least of them being a 4 ft encroachment by a neighbor's fence onto my 1 acre wooded lot. It seemed so incidental (4 ft of 120 ft frontage) in comparison to the other problems at the time, we decided to forego addressing it so we could finally take possession.

Since I pay taxes on that 4 ft. strip of land, I expected that I could tell my neighbor of 4 years to move their fence at anytime (fence was there when we both moved in; we were here a year earlier than them). However, after reading other posts and doing some research, Ohio doesn't seem to recognize paying taxes as a deterrent to adverse possession. We do not object to their usage of it, but I never intended to "give it" to them. I've made friendly, casual comments here and there so they understood we were "allowing" them use it. They are definitely aware of the encroachment via their own survey done a few years ago. I always planned to address it if 1) they were to build a new fence, 2) 21 years was on the horizon, or 3) with the next homeowner if they sold before then. To merely address this out of the blue would definitely turn my friendly but litigious neighbor into a formidable enemy.

If I understand my research, the 21 year cycle begins again with each new owner. Please tell me if I am correct? If so, is there a "friendly" way to approach this? Or, if I have stupidly forfeited my rights, how do I make them responsible for the property taxes on the 4 ft. section?

 

[HomeGuru]

Give neighbor two options: sign an encroachment agreement or move the fence, period, end of discussion no further comments.

 

[Trooshka]

Thank you for responding.

 

[HomeGuru]

A-ok.