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Can Home Buyer Sue Seller Over Bad Smell?


By Ilyce R. Glink and Samuel J. Tamkin

Summary: A new home owner notices a bad smell and wants to sue the seller. Ilyce and Sam explain that their ability to sue the seller for his or her failure to disclose a material problem with the home will generally depend on various factors: the state’s seller disclosure laws, what the seller knew, and what the contract for purchase of the home stated.

Q: Shortly after moving into our first home, we noticed a stench. It appeared to be coming from a damaged sewer line.

We were told by two different contractors that the problem arose prior to our moving into the home. One of the contractors is convinced that the prior owner should have disclosed this problem to us but the owner did not.
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We've incurred significant expenses in fixing the problem.

Our sellers bought this home as a fixer-upper and quickly sold it to us. Can we sue them for failing to disclose the stench and problems causing it?

A: Your ability to sue the seller for his or her failure to disclose a material problem with your home will generally depend on various factors: your state’s seller disclosure laws, what the seller knew, and what your contract for purchase of the home stated.

Seller disclosure laws generally require sellers to disclose material issues relating to the home. One thing to remember is that many seller disclosure laws require the seller to have actual knowledge of a problem prior to having an obligation to disclose it.

If your contract incorporates some seller disclosure issues and your seller made certain representations as to the condition of the property, you may have the ability to sue the seller under the contract, rather than under the state seller disclosure laws.

In either case, you may have to either prove that the seller knew of the problem and failed to disclose it as required under seller disclosure laws or that the seller knew of the problem and lied to you under the terms of the contract.

Finally, you’ll need to figure out how much you’ve spent to fix the problem. If the cost of making the repairs is high enough, it might be worth suing the sellers. Otherwise, you might be throwing good money after bad.

Consult with an attorney that specializes in construction litigation issues or real estate seller disclosure issues to determine whether the cost of suing will be less than your recovery from the seller. Some contracts and seller disclosure statutes allow for the recovery of attorney’s fees and, if this is the case, it may make more sense to pursue your legal options.

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




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