Post Residential Real Estate Closing: What if You Were Sold a Lemon?
Post-closing residential real estate disputes are all too common after the sale of a home. These disputes often arise after the buyer moves into the home and discovers serious issues such as mold, water infiltration or other home defects. Sometimes a pre-closing inspection fails to reveal these defects because they are hidden. Other times, the inspector notes the potential for such issues, but the buyer does not probe further. Regardless, once these issues come to light, they often require the buyer to spend significant sums to remediate the defects.
What Remedies Does the Buyer Have for Home Defects?
The primary remedy a buyer has if they discover defects in their recently purchased home is under the Illinois Residential Real Property Disclosure Act (the Act). The Act requires a seller to disclose defects in the home such as foundation cracks, roof leaks, water infiltration, and property line disputes to name a few. Under the Act, a seller is required to disclose defects the seller has actual knowledge of. The Act does not penalize a seller for defects that exist but are unknown or if a seller was aware of the defect, took reasonable steps to fix the problem and did, in fact, fix the problem.
How to Successfully Litigate a Claim
The seller’s knowledge is critical to the success of a claim under the Act. If the buyer fails to prove that the seller knew the home had defects and did not disclose the defects, the buyer’s claim fails. That’s why it’s critical for a buyer to retain the appropriate contractor who can render an opinion that the defects were prevalent, and the seller would have had to know about them.
What is the Buyer Responsible for?
Besides the evidentiary hurdles buyers face, a buyer is typically responsible for his/her own attorneys’ fees unless the buyer can demonstrate that the seller actively concealed the defect. Accordingly, a buyer needs to weigh the economics involved in filing suit even if the buyer believes it has a good claim under the Act.
For issues related to post-closing disputes, you should consult Levin Ginsburg’s Commercial Litigation and Dispute Resolution practice group. This includes Roenan Patt, Howard L. Teplinsky, Jonathan M. Weis, Caitlin A. Chenus, and Mark L. Evans.
