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Category: Real Estate Law
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Experience:  20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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We at Maplewood Cove are in need of your assistance and advice.

Resolved Question:

We at Maplewood Cove are in need of your assistance and advice. We received a Notice of Violation sent us by the Ottawa County Sanitary
Engineering Department. In a nutshell, they have found us in violation,
due to rain water intrusion into our sanitary system, and are requiring
the replacement of same. Our primary question is, since we're buying on
Land Contract, is this our responsibility, or that of the Seller?
Also, is there typically any "wiggle room" in their mandated time
constraints, with their understanding we intend to make the necessary
replacement? I can provide a copy of the Notice of Violation and the Land Installment Contract. Is there a place to upload or email those docs?
One of the Executive Board members contacted the Sanitary Department 5-6, here are his notes on
that conversation:
Spoke with the people from OCSE. Discussed our land contract issue which is new to them. Whoever end up to be responsible, MC or Schmiel, will have to meet with them within time frame 30 days starting today. There are engineers and contractors who have already worked on this type of project. Within the past two years at Behlke's, a project like ours $69,000.00. There are 63 sites in their park. There is a main that we would possibly need an easement to use which is on the Schmiel property. The two rental trailers are already hooked up to this main. If we are responsible and we can't get and easement, it could add an additional $18,000.00 to our cost. Those are the high points of the discussion.
Thanks, XXXXX XXXXX
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Pro replied 1 year ago.

Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

My name is XXXXX XXXXX I'm going to assist you with your question.

Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.

Just to be sure - are your downspouts or surface water run-off discharging into the sewer system?
Customer: replied 1 year ago.
The downspouts are not tied into the system. I believe it's the fact that the sewer lines are old clay tiles and are allowing surface water to run into the system. When we closed the park for the off season (no sewer use) and found an increase in flow when it rained.
Expert:  Law Pro replied 1 year ago.
The problem is - it costs serious monies to clean and sanitize sewer water. That if rain water or surface water run-off is going into the sewer sytem the municipality is spending monies needlessly cleaning and sanitizing clean water.


That if eveyone let their surface water or rain water run into the sewer system the cost would be exorbitant to the municipality to clean water that doesn't need cleaned or sanitized.

So, no doubt if there is such - the municipality wants that stopped immediately.

Our primary question is, since we're buying on Land Contract, is this our responsibility, or that of the Seller?


You would have to read your land contract. However, most likely it's your responsibility and should have had testing done of the sewer and water systems as part of your property inspection.

The only way out of that is if the seller knew of the problem but didn't disclose the problem to you - a "latent defect" which they should have disclosed.

In the law of the sale of property (both real estate and personal property or chattels) a latent defect is a fault in the property that could not have been discovered by a reasonably thorough inspection before the sale.

The general law of the sale of property is caveat emptor (let the buyer beware) and buyers are under a general duty to inspect their purchase before taking possession. However, it is understood at law that inspection is not often sufficient to detect certain deficiencies in the product that can only be discovered through destructive testing or other means that a seller could not reasonably be expected to allow under normal conditions. For example, wood beams and interior brickwork often cannot be fully assessed without destructive testing, and it would be unreasonable for the seller to allow the buyer to take apart a car's engine.

As such, the law expects that buyers will protect themselves in the sales contract against defects they cannot possibly be expected to assess prior to purchase. As such, the term "latent defect" is often used as part of the guarantee clauses in a sales contract so that the buyer can recover damages from the seller if defects turn up in the property after the sale. For example, the seller may be required to pay for repairs of any such damage.

There is no automatic right for a buyer to claim against a seller for such latent defects when they are discovered, absent an agreement in contract. However, if a latent defect is discovered, there is often a presumption against the seller when a claim is made in misrepresentation that the seller knew about the latent defect. As such, the seller is required to show that he or she could not possibly have known of the defect, rather than the buyer having to show that the seller did know about the defect. However, if it can be shown the seller could not have known about the defect (and was not wilfully blind to the possibility) then the buyer's claim will not succeed.

However, when the defect could have been discovered by the buyer by a thorough inspection (a "patent defect"), the buyer cannot possibly succeed in a claim against the seller unless the seller actively took steps to hide the defect from a normal inspection.

In all cases, where a seller actively misrepresents the condition of the property, such as by taking steps to make an inspection impossible or by lying about problems when directly asked, the buyer will almost always succeed unless it can be shown that the buyer was independently aware of the defect and completed the transaction nevertheless.



Also, is there typically any "wiggle room" in their mandated time
constraints, with their understanding we intend to make the necessary
replacement? I can provide a copy of the Notice of Violation and the Land Installment Contract. Is there a place to upload or email those docs?


Yes, there is usually some "wiggle room" as to the time constraints they are dictating to you IF you can provide proof that your contractor is working on the matter and will have the issues resolved by a certain date. Each situation is different and sometimes it can't be corrected easily and quickly. So, usually if you provide an estimate from a contractor when the problem(s) are going to be resolved and a contract from a contractor - the municipality will usually give you additional time to correct the problem.



If you have any further questions, please feel free to let me know…

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Law Pro, Lawyer
Category: Real Estate Law
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Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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