Go here and Click on the news story at top right…
http://cbs4boston.com/local/local_story_012184802.html
How the duece is the home inspector suppose to know what is underneath the carpeting. Our contract and cover letter specifically states we do not pull up carpeting, among other things we disclaim. Until they start selling crystal balls I do not see how the inspector is at fault in this. Sounds like the sellers were selling more than a house. They were selling bovine droppings as well.
Criminy!! Talk about your sympathetic plaintiffs!
The Seller and the real estate agent have some ‘splainin’ to do. Good thing for the inspector that E & O is required in MA because he is assuredly going to be brought into this one.
How the heck could the inspector have known? And, How the heck could an oil spill be that large and not saturate the carpeting?
The seller and the agent. Now there’s a novel idea.
Here in NY State, there is a Seller’s disclosure form. Though nearly every question on the form has an “I dont know” choice, most attorneys advise their clients to refuse to sign any disclosure. The law in NY allows a seller to give the buyer $500 (not $5,000) at closing for refusing to disclose what the seller knew to be true. In effect, the buyer, by accepting this payoff, has forever waived his or her right to sue the seller.
Last year, a bill was introduced, which stated that if the buyer hired an inspector, the seller wouldnt even have to fork over the measly $500. The burden would fall on the shoulders of the inspector. Thankfully, the bill went nowhere.
As to disclosure, there have been instances where I have quizzed the seller for things like “have you done any renovations to the home or replaced any major systems, like the heat or the roof”, or “has the home ever had a fire”, or “do you notice any windows that fog”, and have had the Seller’s Agent start screaming at me for asking. The crux is always that “their lawyer told them to discuss nothing about this house”.
Personally, I feel the time has come to stop allowing this sort of nonsense in real estate. It’s bad enough to buy a car that’s a lemon. Imagine buying a $400,000 lemon, and paying for it for the next 30 years.
How was the inspector supposed to know? Indeed! Once again, common sense will ignored, and once again an innocent inspector will be victimized. Just one more case that screams of injustice and corruption.
A house full of air fresheners should set off warning bells, I always mention in my report, even if nothing else is found, the fact that the air freshners may be masking a hidden problem, the same goes for open windows in cold weather, sented candles and incense burning. Also high lights how important the homeowner disclosure form is, these people had to have known.
Well, Keith, based solely upon that news article, I don’t know that we can unilaterally exonerate the inspector. Dave Smith makes the very point, infra, that any attorney representing these victimized homeowners is going to make. Obviously, the seller had to have known of this condition and that is, at the very least, fraud in the inducement entitling the homeowners to rescission of the agreement of sale and damages, as well. The home inspector will likely have to contribute his deductible to this settlement. Had the inspector done as Dave suggests, he would have a pretty good defense.
It is important to note Any and All Odors (including Air Fresheners) that you detect in the course of an Inspection.
I have noted on reports Cat, Urine, Pet, Smoke, Oil, Vermin, Sewage, Mold and even Death odors when I detected them to be present.
Joe (Ferry);
Would the inspector be alowed to sue the seller? Wan’t the fraud, and the damages to the inspector, also being perpetrated on him? He was the to inspect the house for damages. The air cleaners were in place when he did so (one assumes). The sellers (and their agent) were also perpetrating a fraud against the inspector.
If you are representing a legal client, say a defendant in a law suit, and the pliantif’s attorney joins the plaintif in being purposefully untruthful (i.e., lieing through their teeth, in non-legal speak), could not the palintifs AND their lawyer be brought to judgment?
Don’t you just LOVE the way that thge only and sole fall guy in the video was the inspector?
Agreed, but as Luke said, in the movie Cool Hand Luke, “that don’t make it right boss.” Pointing out that incense was burning is yet another way of avoiding litigation, which I applaud, because counting on common sense and industry standards sure won’t help.
If they are both named in the lawsuit, they will in all likelihood file cross-claims against each other.
Yes and that is why his cross-claim against the seller and agent will likely succeed and theirs against him fail.
That is precisely what NACHI is doing in its lawsuit against PHIC. The attorney fraudulently filed a notice that NACHI had been served with the lawsuit when it had not been.
Video? All I saw was the article. Don’t worry he won’t be the fall guy in the suit. Like I said, that seller has some ‘splainin’ to do.
http://www.thedailyitemoflynn.com/news/view.bg?articleid=11198&format=text
Family in financial ruin after being duped into buying nightmare home
By David Liscio
Monday, January 30, 2006
DANVERS - Tim and Stacy Creamer lived in their dream house for exactly 14 hours until they were driven out by the stench of petroleum.
That was last October. For the past three months, the couple and their three children have been living with Stacy Creamer’s parents in Danvers, awaiting word from state environmental officials and the Boston law firm hired to resolve the complicated mess.
“My wife and I bought the house on Oct. 28. We passed papers and moved in,” said Tim Creamer, 28, an eighth-grade science teacher in the Lynnfield public school system and head baseball coach at Melrose High School. “We saw the house three times before we purchased it. The seller’s agent from Century 21 was there all three times, and we also had a home inspector look it over. That’s why what happened here shouldn’t have happened.”
According to the Creamers, the home inspection company, the seller and the realtor all failed to inform them that the site was contaminated by spilled heating oil.
“One of our first questions was, ‘What’s that smell?’ There were electric plug-in air fresheners all over the place,” he said. “But the seller’s agent told us that the owners were heavy smokers and all we would need do was open the windows to air the place out, that everything would be fine.”
Unfortunately for the young couple, their newly purchased single-family home at 107 Burley St., for which they paid $380,000, was an environmental time bomb.
“Our first night there we did what the seller’s agent suggested - opened the windows because it was a nice night, and unplugged the air-fresheners,” he said. “But we woke up to a horrible smell. It was everywhere.”
The couple gathered their sons, Andrew, 6, and Tim Jr., 1, and left the house. Relatives who helped them move furniture and other belongings into the house also removed large throw rugs and wall-to-wall carpeting.
“The throw rugs had big dirty spots, and so did the wall-to-wall, and underneath that was a huge black oil stain on the concrete floor,” said Creamer, adding that the oil apparently leached into the soil beneath the home’s slab foundation and was now perking to the surface.The oil also penetrated the wooden floor joists.
“From what we’ve been able to find out, the leak occurred many years ago and the oil line was replaced in 2000,” he said. “We lost all of our upholstered furniture, our clothing, everything smelled of oil. Even our plastic Tupperware smelled like oil.”
Walter and Joan Mercer, who owned and lived in the house for 34 years, have relocated to California.
“They flew out of Manchester Airport the day after the closing,” said Creamer. “We tried to stop payment on the property, but it had already been recorded at the Registry of Deeds, so it was too late.”
Unlike for automobile sales, the state has no so-called Lemon Law provision to protect homeowners.
Creamer, a Lynn native whose late grandfather, Irvin Creamer, was a Lynn firefighter for nearly four decades, said the circumstances have left his family stressed.
“We’ve since had a third child, and we’re living with my in-laws, so it’s crowded, and nobody is helping us,” he said. “I’ve had to hire lawyers and we’ve made demands. I had really hoped somebody would come forward and take responsibility for this.”
Although no lawsuit has been filed, the Boston law firm McGregor and Associates is representing the Creamers. Meanwhile, the state Department of Environmental Protection’s (DEP) Strike Force has begun looking into the matter, Creamer said.
DEP spokesman Ed Coletta confirmed that the state agency has begun a review of the case.
“Right now we’re gathering information,” he said. “There are a couple of issues and we’re definitely involved.”
Coletta also noted that any oil spill must be reported to DEP, sometimes within two hours of its occurrence, and no later than a few days, depending on the situation.
Creamer, too, has been searching for answers.
“We would like to see one of the parties involved in this transaction step forward and help us out,” Creamer said. “Right now we’re paying for a $380,000 house that’s unlivable and, from what we’ve been told, needs to be demolished.”
Based on Creamer’s discussions with environmental engineers, demolishing the home and carting away the debris will cost $20,000 to $30,000, and excavating the contaminated soil another $100,000 to $200,000.Building another home on the property would add about $250,000, bringing the total for original purchase, environmental remediation and new construction to an estimated $860,000 - a princely sum for a relatively modest home in a working-class community.
The nagging question amid the turmoil is simple: Who should bear responsibility for making things right?
Sandra Warren, the Century 21 saleswoman, has left the Saugus office where she worked for several years and has joined the Beverly office of REMAX Advantage, another North Shore realtor.
Warren declined comment.
“I have an attorney, David McBride, and he has advised me not to talk to reporters,” she said. “There was a home inspector involved and also a buyer’s agent. Most likely this will go to litigation, so I’ve got to follow my attorney’s advice.”
Creamer said his legal representation already has cost more than $20,000, mostly due to necessary environmental testing.
“When we were looking for a house, Century 21 basically told us, here’s the house, here’s the agent. We had it inspected. We relied on people to inform us of any problems, but nobody said a word,” Creamer said.
Hope I do not run into that one. :vomit:
I disclaim environmental problems.
Still, this one is pretty hard to miss.
Would have shown up when I lit a cigarette.
Disclaiming environmental issues does not relieve Liability.
Cigarettes will not find a #2 furnace oil leak as furnace oil has a low vapor pressure.
http://www.wunderground.com/history/airport/KLWM/2005/10/30/MonthlyHistory.html#calendar
The odors are also impacted by rainfall/snowfall. Increase in the level of the water table brings the oil in the soil closer to the surface making the odors more prevalent. Weather History shows heavy rainfall in the days just prior to the discovery. The Odors may not have been apparant at the time of the Inspection.
In some cases, the Oil present below the slab can be remediated and the odors eliminated without removal of the Slab or Finish materials.
Never thought of an oil problem. But you can never tell can you?
This is a nice article for scaring the daylights out of us inspectors. I seriously hopes someone jumps in this boat and rides it out. This way, we can know the end results. Will it be the inspector, the seller or the Real Estate Salesperson, who is at fault. This one would be a very interesting case for someone to really follow through on. We know the reporter won’t because it will not be that interesting if the fall-guy (inspector) is not responsible. This would ruin his great story.
This should be a case for Lorin from Porter Valley to follow up. I am just carious of who is going to hold this bag.
Rick
Yeah. Let’s get proactive.
We have the industry marketing genius (Hey, where is Nick?) on our side and that of the whole industry.
Just my thoughts.
In the video there wre very dark stains in the carpet, at least that should have been noted for futher investigation, but we do not know if that was in the report or not. The reporter only said that the report did not mention the oil leak. GO FIGURE.