Q: We bought a house on Cordelia in April of this year. This weekend the Bay Area had the storm of the century and we discovered multiple leaks in our roof and at least one window sill. The worst was in our daughter’s room where the water started to flow, to drip, to flow right on her bed. He soaked the plasterboard above the bed and we thought it was all going to fall apart. Obviously, we’re going to have to have it fixed, but we’ve only had the house for six months. Doesn’t the seller have some responsibility here?
A: I received five emails over the weekend with essentially the same question. So let me try to cover a few basics.
First of all, you didn’t tell me if you bought a new or old house. There are a lot of new homes being built in Cordelia and if you bought a new one from the builder then that’s a short answer. Yes, the house comes with a warranty against defects and you should knock on the door to the builder’s office. They will fix it. You don’t need to read any further.
If, however, as I suspect you have purchased a used home, the issue is much more complicated. New homes come with a warranty, as do new cars, boats and, I presume, airplanes. Second-hand homes don’t.
So to start off, let me clarify that just because something is wrong with the house you bought, the seller is not automatically obligated to fix it. A non-builder home seller does not issue a warranty with the home. When you buy a home from an individual, you assume the normal risks and responsibilities of owning your home.
This is often a shock to first-time home buyers who have always been able to call their landlord to sort out any issues that arise. That said, the seller certainly had a multitude of legal responsibilities to you that may or may not make them ultimately responsible for any issues you encountered.
Regular readers of this column know that a home seller is legally obligated to disclose any material defect in a home he is selling that is not readily apparent to the buyer and was known to the seller.
The three important parts of this sentence are “important”, “not readily apparent” and “known to the seller”. So let’s take them one at a time.
A “material defect” is a defect serious enough that a reasonable buyer would not have purchased the home if they were aware of the problem, or at a minimum would not have paid as much as they did. Certainly, a leaky roof qualifies in your case.
Then we have the “not readily apparent” test. The example I like to use is the burn stain in the carpet.
If there’s a big burn in the middle of the carpet, where everyone can see it, when the buyer has inspected the house before making their offer to buy, it’s probably not something the seller must disclose. The buyer is responsible for protecting himself by making a reasonable inspection of the property.
However, if that large burn spot was under the sofa, it wouldn’t be obvious because the buyer isn’t supposed to look under all the furniture. Thus, the seller would be required to make the disclosure. (Pro tip: If you’re the seller, disclose the burn point wherever it is and save the attorney fees on the back end.)
And lastly, and probably most importantly, the seller should know about the defect. When a lawsuit is filed, this is almost always the element that gets the lawyers’ full attention.
Section 1102.4 of the California Civil Code states that neither a seller nor his real estate agent is required to disclose anything that “is not in the personal knowledge of the seller, listing agent or agent. buyer’s agent. . . . “
California has experienced a drought. There has been very little chance recently of experiencing a roof leak and the huge amount of water that fell over the past weekend was way more than your normal shower. So you have to ask yourself if you have any evidence that the seller knew the roof was leaking.
This question is very factual and certainly not something that I can give you an opinion on in this column based on the limited facts at my disposal.
It can take a significant amount of research to determine whether the seller is ultimately responsible or not.
Tim Jones is a real estate attorney in Fairfield. If you have real estate questions to which you would like to have an answer in this section, you can send an e-mail to [email protected].