Q: I purchased an older home in Northern California earlier this year. We signed off on disclosures at the time of our purchase. We had a number of unanswered questions back then (and still do), including where the access panel for the upstairs tub is and if there had been any issues with the tub, shower and other plumbing in that room. There were some spots of potential mold and cracked grout, and the lack of access to a jetted tub concerned me, but our inspection did not reveal any problems.
A few weeks ago, I saw water marks on the wood-beam ceiling below. And after running water a few minutes in one of the sinks, I smelled mildew or mold.
From across the street, you can see our house has an attic, but there is no access to it. We were told that the roof to our home was replaced about 10 years ago. I have asked the former owner, the seller’s real estate agent and our agent for information on all these issues. None has been provided to date. Our agent told me we signed off on the disclosures (which didn’t include an attic or any plumbing issues).
I have heard what I believe are rats above us and two days ago spotted what appears to be black mold in the wood-beam ceiling above the front door along what would be the attic. Please advise if there is any, and if so, what, recourse we have.
A: There’s nothing worse than moving into your new home and finding substantial issues you hadn’t planned on fixing. It can be overwhelming and unsettling.
At first glance, your questions seem reasonable, and it appears that you’re trying to get information on your home. The truth is that buying a home is not like buying a new car, where you can go to the dealership and have them answer your questions endlessly.
(In fact, with some new cars, the features can be so complicated that we know some owners who have gone back a dozen times to get lessons from the folks at the dealership about how to work their car’s electronics and gizmos.)
When you're shopping for a home, you may or may not find the seller ready and willing to answer all of your questions. First-time home buyers, in particular, often have trouble getting the information they really need, perhaps because they don't know what to ask. The seller may be willing to answer some basic important questions about the home, but rarely have we seen a seller respond to a laundry list of questions. They just want to move.
Here’s the thing: If you weren’t getting the answers you needed, you had a big card to play — you could have simply delayed the closing until the seller gave you what you needed. Now that you’ve closed, the seller may not have a legal duty to answer any of your questions.
In fact, you could have delayed the process when you signed the contract to purchase the home, or when you had your inspection, when you received the seller disclosure report from the seller or at the closing.
If the seller lied to you on the seller disclosure form and that lie was material, you may have recourse against the seller. You can file a lawsuit and go through the expense and time of a trial. But first, be sure to discuss your legal options with an attorney who has experience in seller disclosure litigation. You may not even have a case.
Why? Whether your home had an attic or not and whether the attic had access may not be considered a defect that gives you a claim against the seller. We are surprised, however, that your inspector did not make a notation on your inspection report of his or her inability to inspect that area of the home.
When it comes to the tub, you should know that there are many types of whirlpool tubs and regular or oversize tubs without access panels. If you need to make a plumbing repair, you’ll have to break through the tile or wall and then repair those items, too. In some cases, those repairs can add a lot to the final bill when you then have to match tile and other finishes. (Of course, that’s when you’d add your own access panel.)
On the mold, water issue and animals that may be living in your attic, those issues could be old or new. It’s hard to tell. And your seller may not have known of the mold or water issues and may have not experienced animals living in the attic. Even if the seller did know of those issues, the question is whether any of those issues are material and whether the seller had a duty to disclose them to you.
Generally, sellers are required to disclose mold conditions, but we have found that many homes have mold or mildew-like substances in showers and around bathtubs, and we have not seen sellers disclose that.
You'll have to assess how bad your issues are and what it will cost you to repair those items. If the cost is significant and you feel it's worth talking to an attorney, you should be prepared with pictures, repair estimates and all your documentation from the closing so your meeting will be productive and you leave with clarity on the choices at hand.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the chief executive of Best Money Moves, an app that employers provide to employees to measure and reduce financial stress. Samuel J. Tamkin is a Chicago-based real estate lawyer. Contact them through her website, ThinkGlink.com.