<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by tamo:
Before we signed the contract to purchase our home, we did the normal walk throughs and inspections. The home was a little above our price range, but our agent pointed out that the home had a brand new central h/a unit being installed. Sure enough the unit was not connected and obviosly was in the installation process. The ad in the local paper also stated "new central heat and air." The installation was complete about 2 days prior to closing. We turned on the unit (in the winter) and let it run for approx. 10 minutes...all seemed great. Upon moving in, we turned the furnace on once again and 20 minutes later it was not working. Assuming it was under warranty I contacted the realtor as I could not locate the paperwork and lo and behold she informed me it was not a "new" unit but was actually a used unit approx 10 yrs old that the previous owners had installed! She denied ever stating it to be new and said the ad in the paper was a mistake. Do we have legal recourse here? And also is there a statute of limitations? I live in Missouri.<HR></BLOCKQUOTE>
In this situation the real estate agent is guilty of misrepresentation and nondisclosure. You as the Buyer relied on the statements in the ad and the real estate agent's disclosure that the HVAC system was new. The Realtor also lead you to believe that the system was new. Only when you brought up the problem did the agent say that the system was not new and then told the truth about the condition. The ad may in fact have been a mistake but if it was, the agent should have disclosed that to you upfront instead of later after-the-fact when you brought up the problem. There is more than a hint of unethical dealing and a breach of standard of care to you as the customer. The entire scenario sounds kind of fishy to me. Check with the newspaper to see if there was any retraction or correction of the ad requested by the agent and confirm how many times the ad ran.
Both the Seller and the agent are guilty of misrepresentation ( improper disclosure by ommission of material facts) due to the following:
1) there was no disclosure provided stating that the system was not new but in fact used and 10 years old [which is old by HVAC appliance standards]
2) there was no disclosure that the Seller/homeowner installed the system, was not competent and did not have the proper knowledge and training to do such work and
3) the Seller was not properly licensed to do the work. If a license is required to do this type of work, the Seller may be in violation of state licensing laws.
Further evidence of the agent's representation of "new central heat and air" may be found on the agents' listing fact sheet and/or MLS form.
This is for the benefit of our readers out there buying a home. If there is anything in the home under repair or replacement at the time of purchase, always get the name and telephone number of the contractor that did the work, a copy of the PAID invoice detailing exactly what work was completed and the applicable warranty papers. Do not close until you get these documents in hand. Or in the alternative, have escrow hold back monies for the estimated work from the Seller's proceeds. Escrow should be notified not to disburse until such time that you notify escrow in writing to confirm that everyting is order and give instructions to release the funds.
You do have recourse against both the listing agent and the Seller. There is a statute of limitations in Missouri. Hire a licensed specialty contractor to fix the problem and make the agent and the Seller reimburse you. File a complaint with the local Board of Realtors and the State real estate licensing board. Put the heat on as it appears that this agent is full of hot air.
