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New House Septic System Problems

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

REM #LAW 637

By Ilyce R. Glink and Samuel J. Tamkin

Summary: We bought a new house and now we are having septic system problems. The salesperson and the seller are not returning our calls. What can we do?

Q: We recently purchased a new home. Before we moved in, the neighbors informed us that our home had been built eight months earlier and the basement had flooded.
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When we asked the salesperson (who works for the developer) about the flooding, she told us that the problem had been fixed. She told us that basement had been re-done. Waterproofing materials were installed along with two new sump pumps.

While that may be true, we now have septic system problems and water is coming up through the basement floor. We have tried to get in contact with the salesperson and the seller, but neither will return our calls. What should we do?

A: Assuming you purchased your home from the original developer of the home, you should take immediate action to get the seller to fix your problems.

Start by taking a look at the papers you received at the closing. Did you receive a written warranty from the seller outlining what his or her responsibilities would be to you in case of a problem with the home? You need to look at the warranty that was provided and file a claim under the warranty. To file the claim, you must follow the specific instructions in the warranty you received, or the claim might be invalidated..

If you did not get a warranty, you will have to notify the seller of your problems and demand that he or she fix them. You should send the notice in writing to the seller. Be sure to send it certified mail, return receipt requested.

Your next step is to figure out what the problems are with your basement and how much it will cost to fix them. Get several bids from reliable contractors, but donít fix the problems until you hear from the seller. If the cost to repair the items is quite high, you may want to immediately consult with an attorney to determine the best way to handle your situation.

Donít let too much more time go by. Warranties typically expire after a certain period of time. If too much time has elapsed, the seller might claim the warranty has expired, or he can shut down his business and leave you holding the bag.

Since your seller seems to be avoiding your calls, you should take an active role to bring him to settle up with you even if you have to sue him.

If the representations relating to the repairs were made before you signed the contract to purchase the home, you may have an action against the seller for fraud if he did not make the repairs he claimed were made. You may also have an action against the salesperson if she told you the repairs were made when in fact they were not or if she knew the basementís problems were not completely fixed but promised you that they were.

Some states have consumer protection laws to help buyers like you in pursuing an action against a seller. Unfortunately, if the seller is a small-time builder and has done a good job protecting himself and his assets, you may find that if you sue the builder, the builder may not have any assets to fix your problem and you might have spent your time and money fighting him without getting anything in return.

One last suggestion: Your neighbors might remember the name of the waterproofing company that worked on the house. If they do, you can call them up and find out what kind of work they performed and whether they will back up their work. Many waterproofing companies warrant their work for several years and allow their warranty to transfer from the prior owner to subsequent buyers.


Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glinkís 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 Ilyceís website




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