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Can we sue prior owners for lying on disclosure statement?

Lancaster, NY |

The sellers stated that they had the septic pumped in spring 2012 and frequency of pumping was every 2 years (this is what they wrote on disclosure statement). We closed in August 2012 and by September there were and have since been problems. Our neighbor told us that when the dye test was done the owners ran the water down the driveway and not into the septic. The 1st septic company we had here had just so happened to be here in 2009 for the sellers and had informed them that their system was in rough shape and overtaken by roots and needed to be pumped. This company wrote up a sheet for us stating our system had not been pumped in several years. I spoke to the man from the health dept who did the test and the sellers told him they had not pumped in 7 years. They lied can we sue?

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Attorney answers 5

Posted

You'd have to retain a lawyer to do some research because usually those representations may be barred by your own inspections and the closing of title except for certain exemptions for "environmental conditions" like hazardous waste disposal and petroleum spills or tank leaks, but lying on a disclosure statement may be actionable if the lies were blatant and false and the former owners knew or should have known those representations about the septic system were false or negligent of the true factual disclosure. Worth a couple of hours of attorney research and seeing whether there is any case law on point. What are the damages to fix? Perhaps a small claims action in the $3,000 - $5,000 jurisdictional range may work for you (the amount depends on local court jurisdiction in your area, whether it's a city/village or Town).

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Steven Warren Smollens

Steven Warren Smollens

Posted

Will be at West Mountain Saturday for a daughter competing in a race.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Awesome! Maybe we can meet and I'll buy you a drink! One of my close friends and colleagues had a daughter that grew up ski racing, so I'm very familiar with the parents hanging out scene. Call the phone # on my website and give me your cell phone number, Steve!

Steven Warren Smollens

Steven Warren Smollens

Posted

Will do.

Posted

Yes you can sue. But first speak to a real estate lawyer to determine if it is worth it. What will it cost to litigate versus what can you recover and what are the chances of winning.

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Posted

Yes, you can sue. Based on your facts, it is likely you will be successful. You will still need to prove your damages, however.

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Posted

Yes you can sue under the property condition disclosure act. Hire a real estate litigator as soon as possible.

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Posted

I have experience with this type of case. A case like you describe is fact dependent, and the legal standard is demanding. That said, a lawsuit is possible, but without a review of your contract, deed and other relevant documentation, it's impossible to speculate about the possibility of success.

This communication is intended only to provide general information. No attorney-client relationship is created.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

I haven't had experience post closing with this kind of claim outside the regulated context (haz wastes/petroleum discharges or threats of discharge), but looking at §465 of the Real Property Law cited by Mr. Chertok above concerning remedies, it seems that if the seller provides the disclosure statement he is liable only for "willful" failures to provide the disclosure items on the form, which would suggest (to me) that there's no duty to do any investigation supporting the disclosure and you'd have to prove that the misstatements or omissions were not good faith "mistakes" but fraud and deliberate misrepresentation, and then you only owe the actual damages. It would be hard IMO to prove whether someone remembered exactly the last time the septic was pumped out or guessed whether the paint could have been lead paint, etc. So here, I'd think it would be difficult to get more than the cost of a septic pump out and it would be hard to demonstrate the owner knew the system was failing and needed a new, expensive leach field for instance.