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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 87591
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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We bought our home in May but sellers didnt disclose the water

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We bought our home in May but sellers didnt disclose the water damage to the carpet & they also took the surround sound that was on the walls. We had to do our walk thru in the dark because realtor didnt notify us in time so we didnt find this out until after closing. At the closing we expressed our concern & relocation company assured they would fix whatever is wrong but has yet to do so & wont respond to our estimates for replacement. Do we have a case for them to fix our repairs or are we out of luck?
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Did you have an inspector walk-through done before the purchase, or not (was the walk-through done by yourself)?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 11 months ago.


Yes we hired and paid a home inspector, which was recommended by our realtor who not only missed the carpet but 2 windows that wouldnt open. Little did we know at time our realtor & home inspector were good friends. Since the sellers were still in the home at time of inspection the home was full of furniture so his defense is he didnt see the damage but later wrote up report describing the damage which we submitted to relocation company. The base boards are shredded/damaged at least an inch from carpet base in 3 of the rooms including the closet space. We were only asking those 3 rooms to be replaced.

Expert:  Ely replied 11 months ago.
Thank you.

Did the purchase contract specifically state that the surround sound would be part of the home purchased?
Customer: replied 11 months ago.

In the contract no I dont think so but we requested to our realtor numerous times that it stayed but she responded saying it's attached to the walls so it's common knowledge it stays.

Expert:  Ely replied 11 months ago.
Thank you.

Apologies in advance for the momentary wait as I am typing out your answer now...
Customer: replied 11 months ago.

Not sure if this helps but both us & the sellers was going thru a VA loan, which my understanding is they are a little picky with their inspections.

Expert:  Ely replied 11 months ago.
On this website, I do not always get to give good news, and this may be one of these times.

First, understand the following: Relief for an injury/injustice is typically sought via a pleading citing one or more causes of action in Court. To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

1) Now, the seller must disclose all known material defects. The water damage to a rug is not a material defect. I am afraid that the Court is unlikely to see this as a failure to disclose matter, since this is not really a material matter (as opposed to say, a decrepit staircase).

2) A property has two types of items: chattel and fixtures. Chattel is temporary - it may be moved without causing damage. Chairs, tables, some lamps, etc. Chattel is not part of a real estate sale unless specifically stated otherwise in the contract. Fixtures are items that cannot be removed without causing injury to the property and are meant to be permanent. A/C unit, a new deck, etc. This is part of the real estate property and is included in the sale. The CARPET is chattel. As such, it is not included in the sale unless specifically stated that it is included. I am going to assume it was not. Nor was the surround sound system.

3) Therefore, you cannot hold the seller liable for items that they really did not have to leave (carpet - stain, system - taken) since these were CHATTEL and not part of the sale unless specifically stated in the contract.

4) However, you may be able to sue the Realtor for NEGLIGENCE due to her failing to include that in the contract despite the repeated and clear communication by you to do so and her telling you she will but never even attempted to.

5) Now the base boards - that may be actionable against the seller but if you had an inspector walk through, the inspector SHOULD HAVE NOTED THAT. If they did not, one has a stronger action for NEGLIGENCE against the inspector for failure to see that than against the seller for non-disclosure.

This being a VA loan does not make a difference one way or another re: the above.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Expert:  Ely replied 11 months ago.
PS -

Minor correction.

4) However, you may be able to sue the Realtor for NEGLIGENCE due to her failing to include that in the contract despite the repeated and clear communication by you to do so and her telling you she will but never even attempted to.

Should read:

4) However, you may be able to sue the Realtor for NEGLIGENCE due to her failing to recognize the difference between chattel and fixture.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 87591
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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