Septic suit.

Originally Posted By: gromicko
This post was automatically imported from our archived forum.



Lawsuit over Undersized Septic Field Allowed to Proceed


An Indiana court has considered whether a homeowner's lawsuit against company who marketed a home as having four bedrooms but which had a septic system designed to comply with the requirements for a three bedroom home.

McKibben Construction, Inc. and McKibben REALTORS? & Development (collectively, "Developer") constructed and marketed a home in 1990-91. As part of the construction process, the Developer built a septic field for the home. In the septic field permit application, the Developer stated that the home would have three bedrooms and built a septic field in conformance with a county ordinance ("Ordinance"). The Ordinance proscribed certain sizes for septic fields in accordance with the number of bedrooms in a home. A building inspector for the local county visited the construction site and confirmed that the septic field construction complied with the permit application.

Following the completion of the home, the Developer marketed the home for sale as a four bedroom home. Robert Longshore ("Buyer") purchased the home in 1992. In the purchase agreement, the Buyer waived his right to an inspection and also released the Developer from liability for any defects on the property, although the release failed to conform with statutory release form for the waiver of the implied warranty of habitability.

In 1998, the Buyer began having problems with the septic system, as it began overflowing into his backyard. The local health department determined that the septic system had failed because it was too small for a four bedroom home. In 1999, the Buyer filed a lawsuit against the Developer, alleging misrepresentation and fraud. The Developer filed a motion with the trial court seeking judgment in its favor, and the trial court ruled in favor of the Buyer. The Developer appealed.

The Court of Appeals of Indiana affirmed the trial court and allowed the Buyer's lawsuit to move forward. The Developer made a number of challenges to the Buyer's lawsuit, most of which were procedural. First, the Developer made two constitutional challenges to the Ordinance. He argued that the Ordinance was unconstitionally vague because it failed to define "bedroom" and also that the Ordinance violated the Due Process clause because the Ordinance failed to establish a connection between bedroom sizes and septic field sizes to justify the regulation. The court rejected both challenges, finding that a reasonable person would understand the meaning of "bedroom" within the Ordinance. The court also found that the Ordinance's use of bedrooms as the basis for septic field size was rationally related to the Ordinance's goal of protecting public health from sewage, as bedrooms were a common method for regulating septic field sites. Thus, the court rejected the Developer's constitutional challenges to the Ordinance.

Next, the Developer argued that the Ordinance did not provide for a private right of action and thus violations of the Ordinance could not serve as the basis of a lawsuit brought by the Buyer. The court rejected this argument, finding that the Buyer had alleged fraud, misrepresentation, and breach of warranty in his lawsuit, and thus was not basing his lawsuit on any sort of duty established by the Ordinance.

Another challenge brought by the Developer was that the statute of limitations barred the Buyer's lawsuit. The applicable statute of limitations required that the Buyer's claims must be made within six years. The Developer argued that the Buyer's future wife, in the process of building a swimming pool, had obtained a copy of the septic permit showing that the septic field was only built for a three bedroom house more than six years before the filing of the Buyer's lawsuit. The court found that the statute of limitations began running when the Buyer became aware of his possible claims. Here, the court found that the Buyer testified that he never saw the permit, as his future wife was in charge of building the pool. The court also determined that Indiana law does not allow a defendant in a lawsuit to use imputed knowledge as a shield from liability, and so the Developer could not impute the knowledge of the Buyer's future wife to the Buyer about the permit. The court ruled that there was a fact question which needed to be resolved about the Buyer's knowledge of the permit, and so the court sent the case back to the trial court for further proceedings.

Finally, the Developer argued that the Buyer had released the Developer from liability for defects in the home and also had waived his right to inspection. The court found that an Indiana statute specifically described the format a waiver of the implied warranty of habitability must take. The waiver prepared by the Developer failed to follow the statute, and thus was legally ineffective. Thus, the court ruled that the waiver had no effect on the Buyer's lawsuit. Therefore, the court affirmed all of the trial court's rulings and allowed the case to proceed.

McKibben Constr., Inc., v. Longshore, 788 N.E.2d 452 (Ind. Ct. App. 2003).


Originally Posted By: jremas
This post was automatically imported from our archived forum.



Wow, what a coincidence, I am in the middle of a similar situation with a property that I inspected for an attorney from Philly. Glad I pointed out the undersized septic on my report…






Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: rpalac
This post was automatically imported from our archived forum.



s#!t happens…(excuse me I couldn’t help my self)


Great reading....the balances of the court do dipdifferenty state by state


Originally Posted By: mrose
This post was automatically imported from our archived forum.



Hi Jeff,


How were you able to determine the septic system was undersized?

Thanks,


--
Mike Rose
Cornerstone Home Inspection Co. LLC
Lawrenceville, GA

www.cornerstonehomeinspect.com

Originally Posted By: kwilliams
This post was automatically imported from our archived forum.



Good icon_question.gif Mike, I just did a 3 br, 2 bath house with septic in small ft. yard with a 77 ft. gutter going into a french drain also ( I think) into the yard


Originally Posted By: jremas
This post was automatically imported from our archived forum.



Mike, I found the septic tank under a 20 year old tree that fell down because the roots can’t grow too well over the top of a tank. I suspectedd root infiltration into the tank and called for the tree to be removed and the tank pumped for further evaluation. My client only wanted me to the the evaluation and we got the seller to pay for it. Upon arrival with the tank open it was a 60" high by 60" tall cylindrical sized which works out to a 750 gallon tank if completely full (overflow condition). The original home was a 2 bedroom chalet which was remodeled and a large addition added in 1999 making it a 4 bedroom home. They did not upgrade the septic system to match the home.


In PA the minimum size tank you can have is 900 gallons and a 4 bedroom home has a minimum of a 1250 gallon tank. I don't normally size the tank but the septic company told me they pumped out 1000 gallons and this tells me there was an overflow condition and they had to be pumping additional fluid from the absorption area. How can you get 1000 gallons out of a 750 gallon tank unless you are getting overflow from the home and absorption area? In addition, the pumping allowed me to see that there was a small hole/crack in the bottom of the tank that was bubbling up with the residual fluid (1") left in the tank.

Not only is the tank undersized, but the absorption field would also have to be recalculated/designed per the perc test results.

So when a larger family moved into a 4 bedroom home that has been used as a vacation home with a septic system that was originally designed to serve a 2 bedroom chalet, you get major problems. Not to mention that all of the properties surrounding this home all have elevated sand mounds and this is still a conventional gravity feed absorption field.

FOR YOU BLIND LOAD AND DYE TESTERS...................BEWARE......


--


Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: Ed Griffin
This post was automatically imported from our archived forum.



Jeff,


I was going to ask the same question-how did you find the tank and its size? I guess the tree was a great clue. If that hadn’t been the case, other than documentation from when the tank was installed, is there any way to tell that a tank is the proper size?


Originally Posted By: jremas
This post was automatically imported from our archived forum.



In order to determine the size of a tank, you need to access the lid to determine the depth of the effluent. From there you probe until you can mark all 4 corners or the perimeter if round then you can do the math to determine how many gallons the tank can hold. Geometry is a prerequisite.






Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: jremas
This post was automatically imported from our archived forum.



How come the topics that are nothing more than a bitch, moaning, groaning, complaining session get tons of replies and my beloved septic issues just sit here with very little to no replies?


This is great info on poop processing and big ticket high liability items and it gets brushed aside like a stinky stepbrother.

What gives?

Does anyone do septic inspections besides Igor and myself?

Take care


--


Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: rsummers
This post was automatically imported from our archived forum.



When you perform a septic Inspection do you clean the tank? In my area the people who perform the septic Inspection pump out the tank. I don’t know of any Home Inspectors who own a septic truck. Having been involved in many septic Inspections as an observer (I ran the hose) when I was a youth it wasn’t a pleasant job.


Originally Posted By: jremas
This post was automatically imported from our archived forum.



A pumping company is usually called to do the pumping and cleaning. In PA it is the sellers responsibility to pump the tank if required by the inspection company so unless there is an ammendment to the standard PAR contract, the pumping is an expense of the seller.






Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: rbracklow
This post was automatically imported from our archived forum.



Jeff,


I do an occasional septic system out here in Northern Calif., and have done Dye Tests. I am not an expert on Septic systems although I know how to calculate load and flow.

I think the majority of inspectors avoid full blown septic tests, for the obvious reasons - unfamiliarity! When in doubt I go to the experts and get a Septic System Engineer to look at the system, especially if I hear a gurgling sound from the toilet, etc. At that point is when I do a dye test to confirm my suspicions.

I do not size systems, I let an expert do that, that way I don't swim in s--t over my head!!

Ron.


Originally Posted By: psisler
This post was automatically imported from our archived forum.



Hi all,


I learned this from a guy that did this job here when they were just using cesspools. Find the location of the sewer pipe exiting the house. The sewer pipe is usually an angled slight slope from the house to the tank, usually about 5-20 feet. Probe the ground being careful of any utilities. Once you have found it, uncover it...careful..fumes can be deadly.

Septic tanks which serve a house can range from 500-2000 gallons. Commercial tanks 5000 gallons or better. Residential septic systems after 1990 usually have a mandated minimum tank size of 1,000 gallons. Tank size is usually a function of how many bedrooms are in the house (originally). 3 or less BR 1,000 GLS, 4 Br 1,250 GLS, 5 Br 1,500gls, 6 Br 1750 GLS.

Here in my county(Nevada county, CA) we have to have 1,500 GLS for a 3 Br house. If all else fails you can find the size of the tank by checking the septic application permit documentation at your local health department, county recorder, building department or your state's environmental agency. As a very last resort if there are no records, ask when the tank is pumped or inspected by another company to estimate the size of the tank during the pumping/inspection and record the info. Hope this helps.

Patrick M. Sisler
Alta Sierra Home Inspections
altasierrahi@lycos.com


Originally Posted By: jremas
This post was automatically imported from our archived forum.



Today’s HI included an ancillary septic inspection along with WDI, H2O and RADON. The septic tank was found under the driveway which prohibited my inspection. The seller is going to pay me the septic locating fee because they were unable to find anyone to locate and dig up the tank prior to inspection as required by the PAR contract. I hate having to send the seller a bill when I am there for he buyer. Thoughts?






Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: wpedley
This post was automatically imported from our archived forum.



A big THANK YOU to Jeff Remas for letting me tag along with him


on a inspection the other day. I have to say Jeff is very good at what he

does, despite his bickering sometimes. You guys just don't know what

we have to deal with as far as the different scenarios here in NEPA. We try

to do our best at making a living and pleasing people at the same time.

BTW I can't believe people don't know where the tank is if they own the

home and have lived there for long. I recently found one this past

summer that was under the GARAGE floor..go figure.!!!!


--
BPedley
Inspecting for the unexpected

Originally Posted By: jday
This post was automatically imported from our archived forum.



“A Home inspection is a non-invasive visual examination of a residential dwelling, performed for a fee.” Per Standards of Practice. Wouldn’t digging up a septic opening be considered invasive? I am a newbie and was just curious. Do you ask the seller first if you can dig it up to have a look-see. I also have a question about what do you wear for protective equipment?


Just being curious trying to learn.

Jeff


Originally Posted By: jremas
This post was automatically imported from our archived forum.



a septic inspection is an ancillary service offered by some home inspectors for an additional fee. you should be trained, certified and qualified to perform the inspection. If you are new to the industry with no septic background then stay away from them until you are ready.






Jeff Remas
REMAS Inspections, Inc.
Northeastern PA & the Poconos
www.NEPAinspector.com

570-362-1598

Originally Posted By: jday
This post was automatically imported from our archived forum.



Great advice Jeff and well taken. What would you suggest to a new guy in an area that has always had the “dye” test done. I have explained to agents that -that test doesn’t give the whole story and that the only way for their client to be sure would be to have it opened, pumped and checked. The come back is that the dye test is good enough for mortgage companies and banks it is good enough for the inspection. I do the dye test now but have a comment that I insert in my report that states the dye test is none conclusive and so on.


Jeff


Originally Posted By: Dawn Thielen
This post was automatically imported from our archived forum.



Hey there… I am new to this discussion board. I did a search on lawsuit and septic system and this discussion came up.


This is our situation... and I hope that ya'll can offer us some good advice. We purchased a house in July 2002, it was built in 1998 and an addition to the house was built in 2001. We went through all the appropriate steps, having built, sold and purchased several different houses. We had an inspection and actually paid x-tra for a septic inspection. Everything, including the seller's disclosure - passed with flying colors. We were living in Wisconsin at the time and couldn't be here for the inspection. So, we never did find out where the septic cover was... we moved down here and closed the next day.

This past fall, we started smelling sewage in the house, whenever we'd run any water. The previous owner/seller/builder lives across the street... We couldn't find the septic cover. So, we'd ask him where it was... and he'd tell us, "it's under the deck" "it's 4 feet out and 16 feet forward, etc" However, when we'd had someone try to find it with a probe, they couldn't. So, finally we hired a septic pumping service and had them accompanied by a well known plumber in the area. Well, it took them 15 minutes... but they finally found the cover. Under the foundation. We live in NC, so there are foundations with crawlspaces or slabs, not basements. We have a crawlspace. In order to relieve the tank and relieve us of the smell, they had to crack a hole into the cover to get their hose in it. They figured that that would do us for quite some time. Well, 3 days later, it was backed up and now the sewage was running freely into the yard. Upon investigation this time... it appeared that the tank, was running parallel underneath the foundation. So, now whenever we run any water, it runs into the yard.

Well to make matters worse, the man who sells us the house, while building his house, puts a mobile home on the property and connects it to our septic tank. Which is only 1000 gallons, by the way. The house now has 7 bedrooms and 3.5 baths connected to this tank.

Supposedly in 1998, before the addition was built... he went to the county for an addition/repair to the system. He submitted documentation at that time, locating the tank and the cover, underneath the addition he later built in 2001. However, it appears that nothing is connected to this addition to the new "gray water" system. Everything appears to run through our septic tank.

Basically, this situation is getting very ugly... we have a lawyer... actually we're on our second lawyer. The first one charged us $2000 to write letters to the home builder/seller and the home inspector. This guy's attorney fires back a letter saying that it was everyone else's fault but his... Including the gentleman who owned the house prior.

Oh... I forgot to mention, this is an old septic system... the land here doesn't perk at all - so the only way new homes can be built is if they are connected to existing septic tanks. Which makes our matters even worse, because not only do we need 1 really expensive peat moss system (which isnt' even guaranteed to work because of the soil conditions) but we now need two systems, because of the mobile home, which is generating $475 a month rent.

BTW. the inspection report.. locates the septic drainfield and the tank in completely different locations than where they actually are.

From this same guy, we purchased a home for my parents, who's property also ajoins this guy's property. Their seepage bed (drainage bed) for this system is in an easement. Well, the past week - he had parked heavy trucks with trailers and tractors on top of this field, several days in a row. We were unsure of who that easement actually belonged to until today. But it does belong to us. He claimed it belonged to him. He wants us out of here, because we're not backing down on this situation... he wants this situation to "go away". He wants to buy the houses back from us, but at the same prices which he sold them 2 years ago. This is NOT going to happen, especially because we don't want to move.

Anyway, our lawyers are working VERY slowly... but someday here in the future, we hope that this situation will be remedied... In the mean time, as the weather has been approaching the 80's you can imagine, the flies and the nice aroma, when we go outside!

I'd like to know if any of you have had similar situations... and if you can offer any advice. If you might have had similar situations.. what were the outcomes.

Thanks


--
Just a homeowner with a BIG problem, any advice is greatly appreciated!

Originally Posted By: kmcmahon
This post was automatically imported from our archived forum.



Dave…sounds like a real $hitty job! Glad we don’t have to inspect them here in WI!!! icon_eek.gif



Wisconsin Home Inspection, ABC Home Inspection LLC


Search the directory for a Wisconsin Home Inspector