What can a home buyer do if the seller did not disclose problems with the house?

Atty. Tom Olsen: Tell us about when somebody buys a home, and they move in, they find that there are defects, problems with the home that were not disclosed by the seller. Do you get calls like that?

Atty. Caleb Maggio: I do, Tom. I get a lot of calls like that.

Atty. Olsen: What would you say they're typically about? Would they be things that anybody would have seen if they'd taken a good look at, or things that are hidden behind a wall? What are buyers generally complaining about?

Atty. Maggio: Most of the time they're hidden, Tom, and that's a requirement to be able to recover in the first place. As a seller of real estate, you have a duty to disclose to the buyer any material defects that are not readily observable to a purchaser. That's things like pipes inside a wall, and where anything is buried in the yard, drainage, and things like that.

Atty. Olsen: Caleb, I had somebody call me one time and say, hey, there's a big hole in the wall, my words, but it was hidden behind a couch. Would a buyer of a property be required to move the couch and see what's going on behind it?

Atty. Maggio: That's an interesting question, Tom, because that leads to, was there a fraudulent misrepresentation? As far as a material defect, I'm going to say that most likely the purchaser should have performed, they probably had the opportunity to inspect, and they should have performed an inspection that looked at the walls and moved the couch there. They'd have a hard time recovering on that basis, in my opinion.

Atty. Olsen: Most people these days have a home inspection done, which is always a good idea. You pay a professional to go out and look at what's going on with the property. When you look at those home inspection contracts that you sign with your home inspector, let's just say you paid $300 for that home inspection, I'm pretty sure that for the most part they say that if the inspector messes it up, your damages are limited to what you paid them, $300.

Atty. Maggio: That's exactly right.

Atty. Olsen: It's worth something, but not worth a whole lot.

Atty. Maggio: Right.

Atty. Olsen: Now let's just say that the seller knew of a problem, that there was a leaking roof that the buyer would not normally have known about. The buyer does want to pursue a lawsuit against the seller. How often does that happen? What's the likely outcome in those situations?

Atty. Maggio: Well, if it's absolutely true that there is a defect, that the seller knew about, then you're going to win on that lawsuit, Tom. What you're going to get is the seller to reimburse you for the cost of repair to that. That's the typical remedy. In very extreme cases, you may even be able to rescind the purchase entirely, but that's a bit more extreme.

Atty. Olsen: When you look at a contract for sale and purchase of real estate here in the state of Florida, it is one of those contracts says that if the buyer has to sue the seller or the seller has to sue the buyer, they're going to be entitled to attorney's fees, which is really pretty rare here in the state of Florida. I know that would certainly involve issues regarding the contract, but after the deal is closed and now the buyer is suing the seller over these undisclosed defects, would that contract still be in play as far as attorney's fees are concerned?

Atty. Maggio: Yes, Tom. Typically what those provisions include is the right to reimburse attorney's fees for enforcing any of the obligations under the contract. The way I understand it is one of the obligations under a contract to sell real estate is that you disclose those material defects. If you don't, it's more than likely that the plaintiff is going to be able to come in at the end of that action, show the judge that provision, and get all their fees reimbursed as well as their damages.