Realtor should've known better

Dear Barry.

We bought a home from a family trust. The previous owners had died, and their adult children were selling the property. As trustees of the estate, they were not required to disclose any defects. But a major ground drainage problem was revealed after we moved in, and we've learned from the neighbors that the trustees and their Realtor were fully aware of it.

The main symptom has been water in the warm air ducts below the slab floor. This was discovered by the first termite inspector who checked the property; so the Realtor hired another termite inspector. The second inspector failed to disclose the water problem, and the agent gave us only the second report for disclosure. Unfortunately, our home inspector also missed the problem because he never looked into the floor registers. Now he tells us that removing the register grills is outside the scope of a home inspection. We're trying to sort out who is responsible for this mess and would like your opinion in the matter. --Lars

Dear Lars,

"This mess" involves two separate disclosure problems: willful concealment by the sellers and their agent and professional negligence on the part of the home inspector.

The trustee/sellers may be legally exempt from disclosure requirements because they were not the occupants of the property, but there is more to be considered than the letter of the law. The intent of the law is to require disclosure of known defects. If the sellers knew about the groundwater problem and its effect on the air ducts, disclosure should have been made on the basis of ethics and common decency, regardless of legal requirements.

The real estate agent is totally without excuse. The central point of ethics within the real estate profession is the requirement for full disclosure of all known defects. Exemptions for the sellers do not relieve their agent from this responsibility. If the agent was aware of a particular problem and failed to disclose it, that agent can be liable for damages and for legal sanctions by the state licensing authority. In this case, the agent is particularly culpable because the first termite report -- the one that revealed the water problem in the ducts -- was deliberately withheld from disclosure.

Finally, there is the matter of your home inspector. He maintains that he is not required to remove grills from heat registers. Strictly speaking, this assertion is correct. Dismantling of building components is not within the scope of a home inspection. However, a truly competent home inspector makes a reasonable effort to inspect areas of potential concern. Air ducts beneath a slab should always be viewed as a potential moisture problem because they may be exposed to wet soil. Heat registers can be inspected quite easily by opening the louvers and shining a flashlight through them. Removing the grills is not necessary in most cases. However, floor grills are usually not fastened and often can be lifted as easily as opening a cabinet door.

All parties who should have provided disclosure failed to perform. The sellers and home inspector may have talking points to the contrary, but no one, particularly the agent, can walk away clean from this situation.

To write to Barry Stone, please visit him on the Web at www.housedetective.com.

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