DEAR BARRY: We bought our home two months ago, and this week our septic system backed up into the basement. When the septic contractor dug up the tank, it had no lid and was filled with dirt. If we had known about this, repairs could have been made before we bought the property. Shouldn’t this have been caught by our home inspector? –Whitney
DEAR WHITNEY: Home inspectors report defects that are visible and accessible. Conditions that are underground are exempt from that kind of inspection. The only clue your home inspector might have had would have been slow or congested drains at the sinks, tubs or showers. If those fixtures were draining properly on the day of the inspection, there is no way your home inspector could have known about the problem.
When purchasing a home with a septic system, it is standard procedure for sellers to provide a septic report from a qualified contractor. A septic contractor should have excavated the tank before you purchased the home. The tank should have been pumped out, and the entire system should have been tested and evaluated.
If any real estate agents were involved in the transaction, they should have recommended that a septic inspection take place. Failure by an agent to advise a septic inspection would constitute professional negligence.
The big question is whether the sellers were aware of the problem. A septic tank full of dirt must have caused previous backups. If so, it would be reasonable to expect that the sellers had knowledge of this condition.
Disclosure laws in most states require sellers to provide information about such defects. You should contact the sellers and/or agents about this situation immediately, and be sure to take pictures of the impacted tank.
DEAR BARRY: We are under contract to buy a new home that is nearly completed. Our home inspector pointed out the need for yard-drainage improvements. The main issue is a steep slope in the neighbor’s yard, causing water to drain onto the property we are buying. We asked the builder to address this condition but he refused. We cannot simply walk away from the deal or we will lose our deposit. What do you think we should do? –Helen
DEAR HELEN: It appears that you are dealing with a builder who plays hardball, and who is more interested in your money than your satisfaction. If he is unwilling to correct a significant drainage defect, you should be able to cancel the sale without losing your deposit.
If the contract requires you to accept a defective condition or lose your deposit, that contract should be reviewed by a real estate attorney.
It is possible that the builder is bluffing. An attorney can let you know what your rights are in this transaction. A strong letter from the attorney could get the builder to perform the necessary corrective work. An attorney’s letter might also enable you to walk away from the deal without losing your deposit.
When dealing with such issues, it is essential that you have a legal advocate.
