Dianne Stow
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Real-estate

6/15/2007

Septic problem should have been disclosed

Q: I recently purchased a home that is approximately 11 years old. I noticed sewage water laying in my yard and began looking into possible problems with the septic system.

With the help of septic service people who came and looked at the system, along with some assistance from the county health department, I have now discovered the tank is from the 1960s when a mobile home was on the lot.

The tank is illegally placed too close to the home and the leech field needs replaced. Since there is no permit on record for the system, we would need to pull a permit to put in a new leech field. In addition, we’d need a whole new system.

There was no disclosure as to the age of the system or any problems with the system from the sellers. I’m thinking about calling the folks who serviced the system in the past with the hope of discovering an issue that should have been disclosed.

When I asked the owners who they used to service the system, they first gave us an incorrect name and now they will not return my calls. What, if any, legal action can I take against the previous owners?

A: Most states have seller disclosure laws requiring the seller to disclose to buyers known material defects in the home. The language might vary from state to state and the forms may vary, but the intent is roughly the same — to give a buyer a fair chance at knowing what the seller knows about his or her home when it comes down to material defects in the home.

If the seller knew of problems with the septic system, then that should have been disclosed.

Some states require a buyer to sue the seller for that failure to disclose within one year of the closing on the home. If you are willing to do some legwork and have access to the Internet, you should be able to look up your state statute that talks about the seller disclosure requirements. That law should also state the time period a buyer has to bring suit against a seller.

If your hunch is correct, and you find the company that previously serviced the septic system and they are able to confirm ongoing problems with the system, you’re going to have a better chance of suing the seller and winning.

You may decide to hire an attorney to walk you through the issues and proceed to litigate the matter if it comes down to that. In some states, seller disclosure laws allow a buyer to recover attorneys’ fees when pursuing a seller for a faulty disclosure.

Ilyce R. Glink’s latest book is “100 Questions Every First-Time Home Buyer Should Ask, 3rd Ed.” (Three Rivers Press, $18). If you have questions, call her radio show at 800-972-8255 any Sunday, from 11 a.m. to 12 p.m. EST. You can also write to Real Estate Matters Syndicate, P.O. Box 366, Glencoe, IL 60022, or visit www.thinkglink.com. Samuel J. Tamkin is a Chicago-based real estate attorney.

Ilyce R. Glink’s latest book is “100 Questions Every First-Time Home Buyer Should Ask, 3rd Ed.” (Three Rivers Press, $18). If you have questions, you can call her radio show at (800) 972-8255 any Sunday, from 11 a.m. to 12 p.m. EST. You can also write to Real Estate Matters Syndicate, P.O. Box 366, Glencoe, IL 60022, or visit www.thinkglink.com.