Real estate matters: Buying 'as is' means 'as is'

Friday, July 18, 2008 at 3:34am

Q: We recently purchased a home that had been foreclosed on by the bank. The terms of the purchase contract were for the property in “as is” condition.

The home inspection report did not say anything about the presence of mold in the house. The basement was a bit wet and stinking, but the realtor told us that it was humidity coming up and that there was pet fecal matter all over the carpet that caused the stink.

After we purchased the house and moved in, we called carpet installation people to put in new carpet. They informed us that there is a lot of mold in the basement, which we needed to remediate first.

The mold remediation people inspected the basement and told us that the basement had been wet in the past (possibly multiple times) and the previous owners tried to paint over the mold areas to hide it. But the mold kept growing.

Is the seller (the bank) is under an obligation to disclose the mold problem? Is this an action we can pursue against them even though it was an “as is” contract? Should the home inspector have found the mold and warned us about it? Can we pursue any action against him?

Finally, the realtor said she thought it was humidity and smell from the pet fecal matter. I’m not sure if she genuinely thought it was humidity and pet droppings or she would have said anything to get the sale closed.

What are our options?

A: When you buy property in “as is” condition, whether it was previously foreclosed upon or not, you take the property in the condition that it is in. The action you should consider is against the home inspector who obviously missed a huge red flag (even you smelled something funny!). The agent is under no obligation to find out more about the condition of the home. That is your department. If the agent does know something about the condition of the property and doesn’t disclose what he or she knows, then you may have grounds to pursue a case against the agent and his or her brokerage firm.

If you didn’t use a real estate attorney to close your deal (someone that you hired to represent you, not someone you paid for who worked for the lender), go find a good one and spend an hour discussing what, if any, legal options you have at this point.

If I had to guess, I’d say that you’re going to have to foot a pretty big bill in order to get this property cleaned up and livable. Hopefully you paid a lot less by buying this foreclosure and you have the cash reserves in order to do what is necessary to make this house something you'd want to live in.

If you want to know what a good home inspection looks like, check out my 22 home inspection videos at ExpertRealEstateTips.net.

Q: My foundation is cracked and the garage and steps are sinking. My insurance company says it will not cover this kind of problem. The house was built in 1992, and I purchased it in 2000. I have been told that the foundation was cracked at that time and the sellers never disclosed this.

Do I have any recourse with the builder or sellers? I have been told the repair could cost as much as $45,000.

A: It is unfortunate that you have a cracked foundation, as well as other structural issues. I imagine that it will be quite expensive to fix these problems, although you should have a couple of contractors provide you with an estimate to repair the damage.

Before you panic about the cost, make sure you get estimates from at least three reputable contractors that can assist you in your foundation repair. Check out their references and see if they have any complaints lodged against them with the Better Business Bureau in your area. Once you have those estimates, you might find that the cost of repair is less than what you were once told.

Now, let’s go back in time: Assuming the foundation was cracked when you bought the property (and that’s a big if), you’d have to prove in court that the sellers knew or should have known about the problem and brought it to your attention. That’s a pretty tall order in and of itself, particularly when you’ve lived in the property eight years and just now realized you have this problem.

Time may be against you on this issue. It has been more than eight years since you purchased the property, and even if you could prove that your sellers knew of the issue and should have disclosed it to you, your right to sue the sellers may have long passed. In most states, you have as little as one year and in others several years to bring a lawsuit against the seller for an issue like seller disclosure.

As far as recourse goes, you bought the home from the sellers, not the builder. By now, any warranty the original buyers received from the builder 16 years ago would have expired.

Now that you know about these issues, you will have to foot the bill to fix the problem, since your homeowners’ insurance doesn’t cover it.

I’m sorry I don’t have better news.

Contact Glink at thinkglink.com

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By: shamelshipman on 12/31/69 at 6:00

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