My fiancé and I purchased our home August 31, 2009. The sellers disclosure stated there was water in basement but a french drain was installed. After some research on the internet I learned that most french drains come with some time of a warranty. Our real-estate agent contacted the seller’s agent to find out what company installed in the french drain. The seller told our agent that she never had a french drain installed, she thought the rain spout was a french drain. We have received two estimates from water-proofers, the estimates range from $3,500 to $4,000. I have also heard that the seller may be able to get away with this because she rented the property out during her ownership,she never actually lived there... is this true ?
Landlord / Tenant Lawyer
Based on what you state, it appears that you may have a good claim under Pennsylvania law. However, be aware that disclosure cases are often hard to prove. However, if there was a disclosure stating that there was a french drain when there was none, your case may be the exception. You will need a lawyer to pursue a case of this type.
Clifford L Tuttle, Jr
Attorney at Law
Real Estate Attorney
I regularly handle failure to disclose cases an I teach the Pennsylvania Bar Institute CLE course on this topic. This does not make me smarter than the next lawyer, bit I have some experience.
Your first problem is $3,500 to 4,000 in damages. In order to be financially worthwhile these case need somewhere between $25,000 and 50,000 in damages. If you sue, you will bring claims under two statutes: The Sellers Disclosure Act and the Unfair Trade Practices and Consumer Protection Law. The later act permits trebling of damages and attorney fee shifting. I have seen many cases where the defendant ends up paying the buyer's attorneys fees. I have seen few cases where the damages are trebled. I have a case now involving a large national builder whose conduct was so egregious that damages may be trebled, but trebling is rare. In that case damages were in excess of $1M due to injuries to the family caused by chemical contamination of a new home. Your case, at least based on what you have said, is not that bad.
The hardest thing to prove is that you relied on the representation of the installation of a french drain. The seller will point to the provision in your agreement of sale known as the integration clause (There are no representation, oral or otherwise relied upon ... this is the entire agreement between the parties etc.) and tell the judge that based on that clause the seller's disclosure is not admissible in evidence due to the parol evidence rule. If the judge agrees, out goes you UTPCPL claim and the fee shifting. That leaves you with an action under the Sellers Disclosure Act. A case under that Act will cost you about $7,500 in legal fees to try in arbitration.
Now that I have you depressed...... perhaps this solution will do. Get photos of the damage and water, get written estimates from two contractors, go to Magistrate District Court (Small Claims) and put on your case. It will cost you less than $150 and you'll have a shot. You need a lawyer but since the economics don't work, try this.
DISCLAIMER The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the Commonwealth of Pennsylvania. Responses are based solely on Pennsylvania law unless stated otherwise.
James S. Tupitza
212 West Gay Street
West Chester, PA 19380