Q: Two months ago, we settled on our first home. At the settlement, we were presented with a termite inspection certificate, which was paid for by the seller, as required in the sales contract. Just a few days ago, my heel went through the floorboard, so we called a termite inspector who confirmed that we had active infestation. The termite inspector estimated that the condition was at least one year old.
We are furious that we were assured the home was termite free, and now are faced with treatment and repair expenses. We have had the home treated, but the former owner refuses to pay for the treatment or the repairs.
What legal recourse do we have to recover those expenses, and any legal fees involved? Should we go back to the original termite inspection company? We feel they are untrustworthy since they could not find the problem in the first place.
A: Termite problems are continuing headaches for buyers, sellers and lenders.
Read your contract carefully. It probably states that the seller will provide you with a written certification from a licensed exterminator that, "based upon a careful visual inspection of accessable areas of the house, there is no evidence of infestation of termites".
This is loaded legal language. What does "accessable" mean? If the floor boards were covered by rugs, your seller could no doubt argue that the areas were inaccessable. The termite company that inspected the property could also argue the same point.
It was reasonable for you not to want to go back to the first company. But how do you know you can trust the second company? I would have immediately contacted the seller, and the first termite company, and let them make a proposal, in writing, to you.
Generally speaking, the termite company that issued the letter gives the homeowner some sort of warranty. Although you have reason to doubt the trustworthiness of that company, you probably should have gone back to them, at least initially.
Now that you have incurred the cost of another termite company, however, I suggest that you send a letter to the seller and to the first termite company demanding reimbursement of your out-of-pocket expenses. Unfortunately, legal fees associated with your side of the case are generally not compensable; you have to bear your own costs for your own lawyer.
If the seller and the original termite company refuse to discuss the matter with you, you may find it helpful to file a suit against them in the small claims court. Check with your lawyer or with the clerk of your local courthouse about filing small claims. Small claims court is a fairly expeditious (and low cost) way of resolving consumer disputes. Unfortunately, it is not used too often by the consumer.
Here are a few suggestions that might help others:
1. Review your contract. Does it contain language regarding the "accessable" areas? If so, try to scratch that language out.
2. Find out in advance of settlement what termite company made the inspection for the seller. Check that company out with your local consumer affairs office as well as the Better Business Bureau. There are a number of reputable termite companies, but there are some "bad apples" also.
3. Obtain the services of a building inspector prior to settlement. While these companies generally are not expert in termites, they do understand the nature of termite damage, and should certainly highlight any such damage to you.
4. If you do find termite damage at a subsequent date, always alert the first company to the problem. If you prefer not to use that company to the problem, obtain two independent estimates of the cost of repair, and present the first termite company these costs. Send copies of your correspondence to your seller and to any real estate agents involved.