Seller Lied About Repairs to home

[KarenAC]

What is the name of your state: Kansas

So, I have quite an issue, maybe someone out there can give me an idea of what to do.

My husband and I just bought our first home. We had it inspected before closing and the inspector found some significant plumbing issues. We put an addendum into the contract the closing would only happen if the seller got the plumbing repaired, and he agreed. A few days later we received a plumbing invoice stating that all the work had been completed, and we closed on the house and moved in.

When we moved in, we realized that only a few superficial things had been done with the plumbing, such has toilets being replaced. The water heater is (still) completely non-functoinal, the bathroom has no water going to it at all, and there is a huge leak in the water main. These are all things that the plumbers invoice we have said had been repaired, and things that the seller had been required to fix before closing.

We contacted the plumber named on the invoice, and not only did he not recall ever being in our house, the invoice we have is nothing like what he uses.

So essentially what we think happened is that the seller made a few repairs himself and then drew up a fake plumbing invoice to make it seem like everything had been done. Do we have any recourse on this? I feel like this has got to count as some sort of fraud, but we really don't have the money to hire a lawyer. Meanwhile though, we're stuck in a house with no hot water and a mold problem just waiting to happen from all the leaking. Thoughts?

 

[tranquility]

What is the name of your state: Kansas

So, I have quite an issue, maybe someone out there can give me an idea of what to do.

My husband and I just bought our first home. We had it inspected before closing and the inspector found some significant plumbing issues. We put an addendum into the contract the closing would only happen if the seller got the plumbing repaired, and he agreed. A few days later we received a plumbing invoice stating that all the work had been completed, and we closed on the house and moved in.

When we moved in, we realized that only a few superficial things had been done with the plumbing, such has toilets being replaced. The water heater is (still) completely non-functoinal, the bathroom has no water going to it at all, and there is a huge leak in the water main. These are all things that the plumbers invoice we have said had been repaired, and things that the seller had been required to fix before closing.

We contacted the plumber named on the invoice, and not only did he not recall ever being in our house, the invoice we have is nothing like what he uses.

So essentially what we think happened is that the seller made a few repairs himself and then drew up a fake plumbing invoice to make it seem like everything had been done. Do we have any recourse on this? I feel like this has got to count as some sort of fraud, but we really don't have the money to hire a lawyer. Meanwhile though, we're stuck in a house with no hot water and a mold problem just waiting to happen from all the leaking. Thoughts?

While it would have been better if you inspected the house after the repairs as your remedies would have been easier; if the seller actually created a false invoice, that's fraud. I would make a written demand of the seller and give him 10 days to reply appropriately or you will "explore your legal remedies." If you think there is going to be resistance, you might as well see an attorney immediately as an attorney's letterhead has a bit more pucker factor.

 

[latigo]

What is the name of your state: Kansas

So, I have quite an issue, maybe someone out there can give me an idea of what to do.

My husband and I just bought our first home. We had it inspected before closing and the inspector found some significant plumbing issues. We put an addendum into the contract the closing would only happen if the seller got the plumbing repaired, and he agreed. A few days later we received a plumbing invoice stating that all the work had been completed, and we closed on the house and moved in.

When we moved in, we realized that only a few superficial things had been done with the plumbing, such has toilets being replaced. The water heater is (still) completely non-functoinal, the bathroom has no water going to it at all, and there is a huge leak in the water main. These are all things that the plumbers invoice we have said had been repaired, and things that the seller had been required to fix before closing.

We contacted the plumber named on the invoice, and not only did he not recall ever being in our house, the invoice we have is nothing like what he uses.

So essentially what we think happened is that the seller made a few repairs himself and then drew up a fake plumbing invoice to make it seem like everything had been done. Do we have any recourse on this? I feel like this has got to count as some sort of fraud, but we really don't have the money to hire a lawyer. Meanwhile though, we're stuck in a house with no hot water and a mold problem just waiting to happen from all the leaking. Thoughts?

There is another vital element of sustaining a civil action for fraud besides showing that the miscreant intended to deceive.

And that is the right of the complaining party to rely on the deception or misrepresentation.

Because you were aware of the plumbing being in disrepair and failed to have it re-inspected prior to closing the deal, you may have a problem with your burden of proof.

 

[tranquility]

There is another vital element of sustaining a civil action for fraud besides showing that the miscreant intended to deceive.

And that is the right of the complaining party to rely on the deception or misrepresentation.

Because you were aware of the plumbing being in disrepair and failed to have it re-inspected prior to closing the deal, you may have a problem with your burden of proof.

Good point. At http://www.kscourts.org/cases-and-opinions/opinions/ctapp/2006/20060310/93146.htm is a case while dealing with negligent misrepresentation and not the intentional misrepresentation alleged here, some of the discussion might be useful.

"Under the facts of this case, the buyer of real estate could not reasonably rely upon representations of the seller when the truth or falsity of the representation would have been revealed by an inspection of the subject property and the misrepresentations were made prior to or as part of the contract in which the buyer contracted for the right to inspect, agreed that the statements of the seller were not warranties and should not replace the right of inspection, declined inspection, and waived any claims arising from defects which would have been revealed by an inspection. There is no showing in the record that the subsequent contract addendum which contained the waiver of the right to inspect was induced by any additional misrepresentations of the seller. Thus, although we disagree with the analysis of the Court of Appeals, we reach the same conclusion that the Alireses were not justified in their reliance upon the misrepresentations of Mrs. McGehee." 277 Kan. at 411-12.

For an intentional misrepresentation, the elements are (http://www.bwhlawyers.com/practice-areas/commercial-litigation/fraudulent-misrepresentation/):

-A representation of fact – there must be a representation of an existing fact – expressions of opinions and puffing statements are not actionable;
-The representation was false;
-The representation was material;
-The speaker knew of the falsity of the representation or was ignorant of its truth;
-The speaker intended that the representation be acted on;
-The party to whom the representation was made did not know of the falsity of the representation;
-The party to whom representation was made relied on the truth of representation;
-The party to whom representation was made had a right to rely on the representation; and
-Reliance on the misrepresentation caused damages.

 

[latigo]

Good point. At http://www.kscourts.org/cases-and-opinions/opinions/ctapp/2006/20060310/93146.htm is a case while dealing with negligent misrepresentation and not the intentional misrepresentation alleged here, some of the discussion might be useful.


For an intentional misrepresentation, the elements are (http://www.bwhlawyers.com/practice-areas/commercial-litigation/fraudulent-misrepresentation/):

I’m of the mind that these buyer folks believed they were cutting a fat hog price wise. And so anxious to close before someone stepped in ahead of them that they didn’t have the good sense to even turn on a faucet in the bathroom.

Or, maybe they did and are looking for even a greater saving on their investment.

But let me ask you, trany.

Suppose they are able to prove actionable fraud. What relief would you suggest that they seek? Rescission or the cost of repairs?

And if the cost of repairs, how in blazes would they be able to provide proof without redoing the entire plumbing system – inside and out?

And even then be able to attribute what due to the seller’s deception and what due to aging and corrosion?

No reputable and conscientious plumber is going to patch up those corroded leaky pipes with duct tape.

 

[tranquility]

I’m of the mind that these buyer folks believed they were cutting a fat hog price wise. And so anxious to close before someone stepped in ahead of them that they didn’t have the good sense to even turn on a faucet in the bathroom.

Or, maybe they did and are looking for even a greater saving on their investment.

But let me ask you, trany.

Suppose they are able to prove actionable fraud. What relief would you suggest that they seek? Rescission or the cost of repairs?

And if the cost of repairs, how in blazes would they be able to provide proof without redoing the entire plumbing system – inside and out?

And even then be able to attribute what due to the seller’s deception and what due to aging and corrosion?

No reputable and conscientious plumber is going to patch up those corroded leaky pipes with duct tape.

I don't think rescission is the proper remedy here unless the plumbing problems are truly substantial. But, measuring damages are always a problem. Here, it is the benefit of the bargain. There is a contract addendum stating:

We had it inspected before closing and the inspector found some significant plumbing issues. We put an addendum into the contract the closing would only happen if the seller got the plumbing repaired, and he agreed.

I assume there was more specificity to the addendum than asking for the plumbing to be repaired. If so, the house must be brought up to that standard. If not, whatever was reasonably contemplated by both parties perhaps evidenced by what the invoice showed as the work completed.

As to the hog butchering, I also find it difficult to believe one does not turn on a faucet before closing to see if it runs if that was demanded in the addendum.

 

[Cedrus]

Find a real estate lawyer and pay him $125.00 to look at the paperwork and write a letter to the seller. See what develops......

 

[justalayman]

In most real estate closings there are releases signed that would remove the possibility of any claim in this issue even if there was fraud provable. The releases are often so simple they are just complete blanket releases of all claims.

One I recall being common in issues similar to this went something like this:


Re: repair of plumbing contingency

Buyer hereby releases seller from all liability regarding [descrjption of contingency]. Buyer acknowledges being given adequate time to inspect repairs and either accepts repairs as is without further inspection or relies upon inspector hired by buyer as evidence repairs were completed to the satisfaction of buyer.

If you notice, that last statement says nothing of the repairs being competed in any specific manner but simply to buyers satisfaction. The reason being, often times the repair would not be exactly as discussed or envisioned but the final results were acceptable to the buyer.

Good luck getting beyond such a release, even if there is a claim of fraud [that could turn out to be something quite different than the op imagines]

 

[justalayman]

As to a proper remedy, if seller is actually deemed liable for the repairs:

The cost of the repairs not completed. Rescission would not be proper as there is the simple remedy of specific performance of the contract available. Especially given the complexity of a real estate deal with all the involved third parties and issues of money's paid to any one of them, the most practical solution would be specific performance or value of repairs not completed. It would be a poor decision by a judge to order a rescission in this case.

 

[tranquility]

A release will not forgive fraud.

 

[justalayman]

A release will not forgive fraud.

Well, not sure I would go that far but even without that, there are times the fraudulent act is made moot by other actions and as such, a release (as example) would appear to forgive fraud. The release, at least how I worded it, would ignore the possibility of fraud as it is not dependent on anything the seller may have presented but the simple acceptance that the repairs were done to the buyers satisfaction. An invoice does not prove anything. An inspection does. Yes, reliance on their claim does mean something but when there is no need to rely on the claim, the person signing the release is at fault for not taking the most minimal steps to verify the claim has been held responsible for the resulting situation.

I do find it odd that so far, based on the OP's statements, they have not even contacted the seller. I know, for me, they would have been the first person I contacted. Calling the plumber would be an odd direction since the plumber would have no liability to the buyer. Heck, for all we know, the plumber isn't being honest with the OP. I can imagine a few scenarios where it would be beneficial to the plumber and denying liability at this point would be a best defense for them.




to the OP:

.

Meanwhile though, we're stuck in a house with no hot water and a mold problem just waiting to happen from all the leaking. Thoughts?

to the possible mold problem:

that is on you. You are required to mitigate your damages once made aware of a problem. If there is something happening now that may cause mold in the future, your obligation is to do whatever it takes to prevent the progression of the problem such that mold would result. If you fail to do that, the mold is your problem.



as to the rest; have you called the seller? If so, what did he say? If not, why not?

 

[tranquility]

Fraud is fraud. The point is the target does not have the facts. No release will absolve that. Period.

 

[justalayman]

Fraud is fraud. The point is the target does not have the facts. No release will absolve that. Period.

fraud is fraud but fraud is not always actionable