My Toilet's Leaking

"My toilet's leaking," the email said, "I didn't see anything about it in the disclosures."

I understand (I do). It's upsetting to spend millions on a house only to immediately run into nonfunctioning appliances, leaking toilets, or leaning fences as soon as the moving truck has delivered your contents and then departed. (Thank goodness I purchase home warranties for my Buyers.)

However, whether the Sellers knew OR didn't know about a particular defect in a house prior to selling is a hard point to prove . . . 

While Sellers are strongly encouraged to DISCLOSE anything and everything they know to be a "material fact" about their home and neighborhood, ("know" being the operative word here) in my experience, the longer people live in a home, the less likely they are to perceive a defect as a defect. Additionally, "material" is a subjective concept at best; it leaves A LOT of room for interpretation.

"Do we need to tell people we buried three cats and a dog in the backyard?" (Yes, you do.)

"How about the ghosts in the attic?" (That depends on whether they're figurative or literal.)

Moreover, if you tend to waive off minor repairs, running toilets and the like are easy things to overlook. I represented a house a few years back where the kitchen pipe under the sink had been silently dripping for at least a decade. How the issue went undetected for so long is hard to imagine, but it did. After ten years, not only was the cabinet floor rotted out but the joists beneath the cabinet as well. (Ignorance may be bliss but it's not going to save you from bigger problems down the road. In other words, PAY ATTENTION!)

BTW, questioning the Sellers' disclosures or motives isn't unusual or a declaration of ill intent; it's a reasonable inquiry, and this wouldn't be the first time a Seller "forgot" to mention a problem. OR . . . it could be as simple as understanding that the Sellers were empty-nesters who hadn't used the kids' bathroom in years. Or . . . it could be that the leak is new. (Sometimes the timing IS coincidental.) Or . . . you could be right; the Seller failed to mention it.

But because most Buyers immediately assume that any omission was purposeful, the revised 2022 Residential Purchase Agreement explicitly states: "Sellers and Agents may not be aware of all defects affecting the property . . . " and that's positively true, while also providing a shield for the Sellers and their Agents. In short, it's going to be difficult to distinguish one's veracity from the convenient oversights, or the innocent mistakes in the disclosures unless the answers are overtly and intentionally misleading. (In other words, not so innocent). As a whole, Sellers tend to see their homes through rose-colored glasses.

"Just give the water 5-10 minutes to get upstairs. Eventually, the shower heats up." (That probably should have been mentioned before the Buyers took possession.)

It's important to note that failure to disclose or to purposely mislead prospective Buyers by answering the Sellers' questionnaires falsely, could constitute fraud on the Sellers' part. Obviously, Sellers are urged to be as honest as possible, and gratefully, most of them are - not all, but most (that's the good news). That being said, memory is both fungible and highly unreliable as a general rule.

As for the bad . . . irrespective of the disclosures or the inspections, when it comes to my home, your home, or ANY home for that matter, houses are NOT static; they are evolving entities - often to their detriment.

In reality, there are all kinds of forces at play: weather, insects, quality of build, lifestyle choices (my mother-in-law likes to remind me that we lived hard in our houses, and with two boys and a dog - she's right) expanding soils, not to mention fires, earthquakes, tornados, hurricanes, and maybe most insidious of all, creeping dry rot. In short, homes are in a constant state of flux. Consequently, they require ongoing maintenance and care. (Don't we all.?!?)

This week, my handyman is painting my front porch for the third time in less than seven years. Next week it will undoubtedly be something else that needs his attention. Regrettably or gratefully, it's the nature of the beast. (Lucky you; you bought a beast.) There are millions of aspiring Homeowners who would love to be in your position. (Unfortunately, they all seem to live in the Bay Area.)

So remember your coveted homeowner status the next time you fret about the cost of the butcher, the baker, the candlestick maker. Better yet, call the Home Warranty Company; that's why I bought you the policy in the first place. The toilet repair should absolutely be covered!

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