July 20, 2015
It is in our human nature to trust other people. We assume, for example, that if a seller is selling us a house, that he would not sell us a “bill of goods” and convey a house full of defects. It is also in our nature that, when things go wrong, we look for someone other than ourselves to blame. It is further in our nature to expect when we hire a professional to do a job, he will do it thoroughly and properly.
But in the case of purchasing real property, all of these instincts are just dead wrong.
First, people can and do fail to disclose material defects in real property when they sell it. It happens all the time.
Second, as we explore here, the law of Ohio is firmly established as caveat emptor, or “buyer beware.” This means that the burden unquestionably is on the buyer to “kick the tires” and confirm the condition of real property before buying it.
Third, be careful of even relying on your home inspector, as he likely will not stand behind his work.
Now, here are some tips that will try the patience of even the heartiest homebuyer:
1) Even if you do everything right: Ask all the right questions, and hire a home inspector, he might still miss something. Massachusetts Realtor Bill Gassett, here, has a good blog entry today on things home inspectors — despite their best efforts — miss.
2) Let’s assume the home inspector missed something — something big! Surely he will stand behind his work. Unlikely. Most home inspectors have a contractual provision that if they make a mistake, the limit of their liability is the amount you paid them. And generally that is enforceable in Ohio.
3) If you are buying a foreclosure, or from a bank or an estate, they both (i) have no obligation to complete the Ohio residential property disclosure form, and (ii) they usually disclaim liability for home defects. If you pursue them you are going to be mostly out of luck.
4) If a seller agrees to make repairs to a home before the closing, it is incumbent upon the buyer to check — before the closing — that the work was in fact done and done correctly. The closing is an act of finality, and a buyer will claim a “waiver” of claims. So, confirm all obligations are fulfilled before closing.
5) Finally, even if a buyer has a meritorious claim against a seller, a Realtor or an inspector arising from property defects, the odds are pretty good that he cannot afford to pursue those claims in litigation.
What all this means is that a buyer must really, really check out the property, the structure — from footer and foundation to roof, the mechanical systems — HVAC, plumbing, and electrical, and all appliances. For, once he closes, he has bought the property and it’s his. The likelihood of him pursuing post-closing claims profitably is minimal.