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Sellers Did Not Disclose Problem

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW624

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A new homeowner has discovered that their furnace does not work and that the seller was aware of the problem. Sam and Ilyce inform the owners that most states have what are called seller disclosure laws that require that the seller disclose to a buyer known material defects in the home. The homeowner's may be able to sue the seller for a new furnace.

Q: I bought a townhome spring of this year. I had all the usual inspections. Now that it’s cold, I turned on my heater only to find out it wasn't working.
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With more inquiries, I found out the gas company turned it off before I closed on the house. The unit had been recalled by the manufacturer a couple of years ago. The previous owners knew this and did not disclose it to me. Now I am stuck with this furnace and I do not know what to do. My realtor contacted the sellers’ realtor and he said it was too long ago for us to try to do anything now. Is there anything I can do?

A: The seller’s agent is wrong. You probably have a claim against the seller for his or her failure to disclose this item to you. Most states have what are called seller disclosure laws that require that the seller disclose to a buyer known material defects in the home. In other words, the seller must tell you of major problems in the home. A recalled furnace probably falls within this category. Some states allow you to sue the seller for his failure to disclose and recover your damages along with your attorneys’ fees.

Before you sue the seller, you may want to contact the furnace manufacturer and determine if they are honoring the recall and what it will cost you to replace the furnace. If the cost is a couple of hundred dollars to replace the furnace under the recall and end up with a new furnace, you may just want to replace it and move on with your life. If the cost is several thousand dollars, you may want to talk to an attorney that can litigate this matter on your behalf or file a claim against the seller in small claims court.

You should also review the documents from your inspection, usually inspectors are pretty good about knowing which furnaces have been recalled and your inspector should have noted this on her report to you. If she did not note it, you may want to call her and discuss why she missed the fact that the furnace was a recalled furnace.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com