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What can I do about house defects after a sale? 

Posted on October 13, 2022

Home sales remain strong in Missouri despite the rise in interest rates as the Federal Reserve fights nationwide inflation. According to statistics compiled by the real estate website Redfin, homes sold in the state in August 2022 totaled 10,854. Overall, home sales in 2022 are besting last year by an average of 21.2 percent. 

Part of this surge can be traced to home prices that are inching downward after a spike during the pandemic. Redfin reports that prices have receded an average of 3.3 percent year over year. 

Suppose you’re one of those happy homebuyers who has finally found the abode of their dreams, only to discover that a defect – undisclosed prior to the close of the deal – now poses new challenges, including an outlay of funds for repairs you never suspected. What can you do? Sue the seller? 

Like most states, Missouri requires a seller to disclose defects to potential buyers, but the disclosure laws are rather general and mandated only for certain defects or structural conditions. However, if the previous owner deliberately hid a defect, then the buyer would have a legal basis to potentially recover the cost of the necessary repairs. 

The problem is that many defects are not readily apparent and are the result of natural wear, tear, and aging. The buyer may happen to be the one unlucky homeowner in a line of succession to have the sewage system ruptured by the long-growing roots of a tree. Could the previous owner have known about this potential problem? 

If you’ve just purchased an existing or newly-constructed home in or around St. Louis or Chesterfield, Missouri, only to discover a serious defect once you moved in, contact the real estate attorneys at TdD Attorneys at Law. With our combined three decades of experience, we can help you exercise your rights under Missouri’s real estate disclosure and defect laws. 

Common Defects Found After a Sale 

A defect that threatens the use and enjoyment of your new home is different from a minor irritant or something resulting from normal wear and tear. A scratch in the bedroom wall that can be easily filled in and painted over is not a defect that can be traced back to the seller and that person’s “deceit” in selling their property. 

However, if a fresh coat of paint on a wall or ceiling is there to cover up water damage from a pipe leak or faulty roofing, then you’re talking about a real defect with real cause for concern and possible action against the seller.  

Again, when assessing defects, keep in mind the normal wear and tear associated with any structure. If you buy a home in August of 2022, and three years later water starts leaking through a wall, that’s probably not something the previous owner could have known about or anticipated. If the leak happens in three weeks or three months, however, maybe the owner should’ve known, but pipes have a way of breaking on their own, regardless of who owns the property. 

With that background, here are some more serious and “actual” defects that can be the cause for recovery actions:  

  • Septic tanks or heater issues 
  • Bad or old ventilation or windows 
  • Electrical issues 
  • Plumbing issues 
  • HVAC issues 
  • Rotted wood or termites 
  • Bad roofing 
  • Water damage 
  • Significant cracks in the foundation 
  • Bad sewer lines or rusted pipes 
  • Radon leaks 

Buyers generally have inspection clauses in their purchase agreements that allow them to back out of the deal if an inspection turns up serious defects that the owner is not willing to fix or provide for by lowering the sales price. Inspections, however, generally reveal only obvious defects. If the foundation is giving way with no visible signs, for instance, the inspector might miss that defect, even though the owner suspected or knew of it. 

Missouri’s Disclosure Laws 

Missouri’s specific disclosure mandates that when selling a home, the owner must reveal whether the property was used for methamphetamine production and also whether the property rests on or includes a permitted or unpermitted solid waste disposal site or demolition landfill. These are Missouri’s only specific disclosure reporting requirements. 

Other defects and their disclosure are covered more broadly by the Missouri Merchandising Practices Act. This law makes it unlawful to use “deception, fraud, false pretense, false promise, misrepresentation, [or other] unfair practice” to market or sell anything, including a home.  

Some states require home sellers to fill out a disclosure form or otherwise provide a defect report to potential buyers, but Missouri does not. Nonetheless, the seller can be held to the standards of the Merchandising Practices Act if he or she tries to conceal a defect. 

Proving Liability on the Part of the Seller 

If a buyer discovers a material defect after completing the purchase, he or she will need to show that the seller failed to disclose the problem and that the problem existed before the sale of the home. As a result of the defect, you – the buyer – suffered or currently face a financial loss. 

Can you place the blame on the home inspector? If an inspector overlooked or failed to discover a material defect, you need to refer back to the agreement you signed with that person or company. These agreements often limit the liability of the inspector. At best, you may be able to recover the fees you paid for the inspection.  

Steps to Take for Recovery 

Before you launch into a costly and time-consuming lawsuit over the defect, you – or better, your attorney – should approach the seller about making good on the repairs needed.  

If negotiations stall or lead nowhere, you can then propose mediation to resolve the matter. Also, at some point in the process, you can and should send the seller a demand letter, setting forth the material defect discovered and spelling out the remedy you seek. 

As a final resort, you can file a lawsuit. In your legal pleasing, however, you can seek only the compensation necessary to repair the defect or restore the property to the condition it should have been in – or was said to have been in – when you purchased it. There is no provision for recovering non-economic damages such as inconvenience or pain and suffering as there is in a personal injury lawsuit

Legal Guidance You Can Trust 

If you discover a material defect – one that is not minor and not just the result of normal structural aging – you should take action to get the seller to fix the problem. If the home is newly constructed, it no doubt has a warranty that can be accessed, but the sale of a pre-existing structure will generally offer no such built-in purchase protection. 

In any case involving an undisclosed material defect, you need the advice and guidance of an experienced real estate attorney. You will have to convince the seller that he or she should have known of the defect and revealed it to you. If the previous owner balks, then you will have to convince a jury of the seller’s liability.  

It’s best to let your attorney handle all of the negotiations and reach the best possible resolution without filing a lawsuit, which can be costly in terms of the expenditure of time and money. 

If you bought a home and then discovered it has a material defect in or around St. Louis or Chesterfield, Missouri, contact us immediately at TdD Attorneys at Law. We will work closely with you to hold the seller responsible and help get the structure restored to a defect-free condition.