Septic Problem Should Have Been Disclosed
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 743
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A ThinkGlink reader purchased a home
that turned out to have major septic problems. The septic field should never
have been approved by the health department. Ilyce and Sam explain how to go
about resolving this issue.
Q: We purchased a 5 ½ year old home in January. Our Realtor was told
that the home was not being lived in regularly because the owner was caring
for an elderly family member.
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About 6 weeks after we closed on the purchase, the septic system drain field
began leaching liquid into the back yard. After having a reputable firm pump
the tanks, it was determined that the septic system was in proper working order,
but the soil was not capable of supporting a drain field.
The local Health Department confirmed that the soil was not suitable for a
drain field, tested and confirmed that the soil did not perk, and issued a letter
of non-compliance requiring us to bring the system into compliance. The letter
also stated that the drain field problem likely existed for many months.
We are now in the process of hiring a soil engineer to determine what alternative
system will bring us into compliance. So far, it appears an alternative system
will cost about $20,000.
My question is where do we begin? It appears that the homeowner was aware of
the problem. A local health department environmental specialist had inspected
the site before the home was built and approved the site and plans for an in-ground
septic system. This person is no longer employed by the health department.
I have since found our problem is not isolated and this individual's name is
associated with many problems like ours. The same department he was in has now
determined that soil does not percolate and never would have.
As required by city ordinance, and as a condition of purchase, a company hired
by the sellers certified to us that there were no visual signs of a septic system
problem in January 2006. But the health department has stated that there were
signs in the terrain that a firm in the industry should have identified as a
problem and not approved the septic system.
The purchase price of the home is much higher than market value given the hidden
problem. We now own a home that we would not have considered buying had we known
that the soil did not percolate.
The safeguards put in place by the state clearly failed on many levels. We
are now left with the results. Any guidance you can provide is appreciated.
A: You sure did find out that the systems sometimes does not work and in a
The first thing you should do is to put together a series of estimates of what
it will take to fix the problem with the sewer system to the home.
After that, talk to an attorney about your options. If you live in a state
that has enacted a “seller disclosure” law that would have required
that the seller disclose the septic system problems to you before you signed
a contract for the home, you may have a right to sue the seller and recover
your expenses in fixing the system.
In some states, if you have to sue the seller for a failure to disclose a material
issue that should have been disclosed to you, you may also be entitled to recover
your costs of suing the seller for a recovery. You should act fast as you want
to make sure you can still find the seller and that he has not taken any actions
that would impair your ability to recover from him or her.
Next, if the septic company failed to live up to the standards in the industry
in inspecting the system, you may have a claim against that company for your
damages. If the inspection company truly failed to do a proper inspection, they
may be held accountable for their mistake. Some home inspectors and other professionals
that service home buyers have recently started having buyers sign documents
that would limit the liability of the home inspector or other professional for
Even if you signed such a statement, if the performance of the company was
so negligent, you might still prevail. A company should not be able to hide
behind the veil of a limitation in a document when the fail in their basic duties
to you as a consumer.
If the inspection company performed an inspection but missed some of the clues,
they may not have been a good inspection company and you may have difficulty
recovering any damages from them.
You’ll have a better understanding of your legal options after you sit
down with an attorney. It’s possible that the seller and the inspection
company will accept responsibility for these issues and negotiate a settlement
with you prior to your suing them.
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