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Should seller, agent have told buyer about mudslides?

April 8, 2011

Question: Bob, We own two homes like a lot of people, one on the Cape and out of state. We bought our home about 48 months ago. As you often suggest, we had a professional inspection, which revealed nothing the seller and realty agent had not already told us.

However, last April heavy rains caused a hill behind the house to become very mushy and slide toward the back of the house. It created quite a mess.

Our homeowner's insurance didn't pay for the cost of almost $9,000 for removing the mud and re-landscaping our back yard.

A neighbor told us similar mudslide problems happened in several previous years but not in the year that we bought the house.

Should the realty agent and seller have told us about this problem and are they liable to us for the $9,000 repair cost?

- Rusty H.

Answer: Rusty, the issue you raise is how much the home seller and real estate agent tells a perspective buyer about a house before a purchase? Unfortunately, the answer is not as easy as asking the question. The old days of "caveat emptor" (buyer be aware) are gone. Home sellers and their real estate agents now must disclose all defects of which they are aware.

However, sellers and their agents do not have to disclose defects of which they are not aware. To illustrate, if the seller installed a new roof on the house and it didn't leak until a very heavy rain occurred after you bought the house, is the seller liable for the damages to the buyer? No, because the seller was not aware of any defects in the roof at the time of the sale.

The same principal applies to the mudslide in your back yard. Perhaps the seller thought the problem was fixed because there were no mudslides in the year before the sale. Should the seller disclose there were mudslides in prior years? Possibly, but with a report to you on what was done to hopefully solve the problem.

A similar situation happened to a friend of mine in California who bought a home several years ago. Shortly after he moved in, a neighbor told him about soil erosion problems, which the seller and realty agent never disclosed to him. Fortunately, the problems had been corrected and he had no further problems. Looking back, he's glad the seller didn't tell him there had been a problem which was corrected because he might not have bought the home.

Is the seller liable for your $9,000 repair cost? There is no right or wrong answer to that question and it would be up to a court to decide if you sue the seller. But I doubt the realty agent has any liability unless she or he knew about the problem. As always consult your attorney, advisor if you are not satisfied with my answer or the outcome.


Have a real estate question? Write, call, fax or e-mail:

Bob Jeffries, Realtor,

Century 21 Birchwood Realty, Inc.

4040 Del Prado Blvd., Cape Coral, FL

239-549-5724 Office

239-542-7760 Fax



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