DEAR BARRY: In several of your past columns, buyers had alleged that the sellers deliberately withheld disclosure of known defects. How can a buyer determine whether a seller did or did not know about a particular problem? –Joe

DEAR JOE: The short and simple answer is that buyers often do not know when nondisclosure is intentional or innocent. Each situation has its own unique variables, so let’s consider some possibilities.

As most people know, sellers must provide buyers with a written disclosure statement of all known property defects.

DEAR BARRY: In several of your past columns, buyers had alleged that the sellers deliberately withheld disclosure of known defects. How can a buyer determine whether a seller did or did not know about a particular problem? –Joe

DEAR JOE: The short and simple answer is that buyers often do not know when nondisclosure is intentional or innocent. Each situation has its own unique variables, so let’s consider some possibilities.

As most people know, sellers must provide buyers with a written disclosure statement of all known property defects. This is required in most states. Unfortunately, disclosure statements seldom contain substantial or complete information. Most sellers are unaware of the significant defects in their home.

For example, if the flue pipe on the water heater is not adequately secured, or if the ground wires in the electrical panel are not properly connected, the average seller would be oblivious to such matters and would not disclose them. At the same time, defects that sellers are fully aware of might go undisclosed for various good or bad reasons.

Innocent nondisclosure can occur when sellers are so accustomed to an old problem that they no longer think about it. For example, a dishwasher might not start unless the door is slammed forcefully. The sellers might have been doing this for years and no longer give it a thought. So the problem does not appear on the disclosure statement. After the buyers move in, they close the dishwasher door in normal fashion, and the unit doesn’t run. So they conclude that the seller withheld knowledge of an "inoperative" appliance.

Unfortunately, not all instances of nondisclosure are innocent ones. Examples include the home with a chronically leaking roof, where the seller paints the stained ceiling and pretends that the roof is perfect. Or the house with major settlement problems, where the seller cosmetically disguises the cracks in walls and ceilings and says nothing about the faulty foundation. Or the sewer main that needs to be cleared of roots every three months and which the plumber has determined is in need of replacement. Or the furnace that has been red-tagged by the gas company as unsafe or inoperative and which will not be discovered by the buyers for many months because the home is being sold during the summer. Or the mold infection under the kitchen sink that has been cosmetically cleaned up but which remains on the back side of the drywall. …CONTINUED

Such problems are often discovered by homebuyers after they move in. Sometimes, it is obvious that the seller knew about the problem. Other times, there is unproven suspicion that they knew. Occasionally, buyers learn by chance that the sellers were aware of the problem. For example, a neighbor might mention that the former owner always had electrical problems or had to patch the roof every winter. Or the plumber that you hire might say that he was called repeatedly by the previous owners to address clogged drain lines. Or you might learn that a previous home inspection revealed defects that were not disclosed by the sellers.

Unfortunately, evidence of that kind does not usually fall from the sky. There are many situations where the ill intent of the sellers is not provable, where buyers are simply stuck with the costs of repairs. Sellers can simply declare that "the roof never leaked when we owned the home" or "the furnace worked just fine for us" or "we never had any problems with the drains" or "we never saw any mold under the sink."

As always, the best disclosure protection for homebuyers is to hire the most thorough and experienced home inspector available. Even then, there may be concealed defects that remain undiscovered. But if the home inspector is a good one, very little is likely to slip by.

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

***

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