Purchasing a home may be one of the most rewarding, yet terrifying transactions that a consumer can make in their lifetime. It is universally understood for many of us that it is the single largest purchase we will ever make. A commitment this large can make even the most self-assured buyer uneasy.
Obvious defects in a home are not as worrisome in this case, as cracked walls and non-working electricity are straightforward to diagnose. Issues that are less obvious are the ones that keep the would be purchaser up late at night. These issues are referred to as “latent defects”. Latent defects are those problems with property that are not visible to the naked eye. These issues can be wide ranging, like asbestos in older homes, corroded piping that leads to a plumbing leak, or carbon monoxide leaking into the home.
In Georgia, like many states, the seller is required to provide disclosures of all known defects, obvious or not. The purpose is to inform the cautious buyer of any issues that they may incur, and to avoid purchasing a home with such defects that they will have to fix. Of course, while this is the law, this is not always followed to the extent a purchaser would like.
What happens when you have bought a home, only to find that latent defects exist and the seller failed to inform you? While it is an uphill battle, you certainly do have options. While you cannot seek remedy from everyone involved, there are a select few parties you can seek recourse from:
The Seller – As mentioned above, the seller in Georgia is required to provide disclosures on the home. This disclosure requires the seller to provide a list of defects on the home that they are aware of, but may not be obvious. While a seller may later deny that they knew about this, patchwork on drywall found after purchase where a leak has formed is an obvious sign that the seller knew there was an issue.
The Sellers agent – similar to the seller, the agent must disclose when asked of any defects on the home, and while their duties are limited, depending on the circumstances they may be on the hook as well.
The home inspector – While Georgia does not require inspections on the purchase of a home, a prudent purchaser will always have one conducted. The inspector is a trained individual, who is well versed in home construction and accordingly has a higher aptitude for uncovering these issues. Depending on the issue, a home inspector may be liable for missing it in their inspection of the home.
So now, you have a latent defect, and there is a responsibility for the parties that have not been met, but do you have a case? There are certain conditions that need to be met before you can proceed.
Was the defect there before you bought the home? General wear and tear on the home is not actionable if the loss merely occurs under your ownership, however if the condition was pre-existing then you should be ok to proceed. Is it a non-obvious defect that was not disclosed, but a prior party was aware of? In the example above, plumbing may not always be an obvious issue, but if you later find steps have been taken to repair and conceal, and you relied on the non-disclosure of those parties, this condition will have been met. Finally, the harmed purchaser must prove damages. Is there an actual cost of repair, or a decrease in the home’s value as a result of the defect? This will be what your claim in a lawsuit amounts to.
There are a number of legal theories that you can bring against the responsible parties depending on the situation. It is recommended to review your case with a qualified attorney beforehand to ensure you are bringing an action on the correct theory. Some of these claims include failure to disclose, negligence, fraud, breach of contract, breach of warranty, and negligent misrepresentation.
If you have recently purchased a home and discover a latent defect, but are unsure of your options, give us a call! Thrift & McLemore’s attorneys pride themselves on their expertise in the real estate law arena and will fight to get you the recourse that you deserve. Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150.