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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 99983
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Could a constant and unremitting flow of water through drainage

Customer Question

Could a constant and unremitting flow of water through drainage tile into a sump pit, by itself, if not properly disclosed to a purchaser, be considered an actionable material defect under any form of construction?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
That depends - what kind of damage has this done to the property, if any?
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 1 year ago.
The condition itself seems typically unusual. The sump pit fills up every 5 minutes and has for 14 days straight--day and night, then expels--about 300 xs per 24 hr. period. There are always potential issues with this much running water--flooding, erosion, etc. It is the condition itself that i am asking about. Does this help?
Expert:  Ely replied 1 year ago.
Thank you.
Yes, it does.
One more question, please. Is this a new home purchase, or, a purchase from a prior owner? What year was the home built?
Customer: replied 1 year ago.
condo--built around 1999--i bought it from a broker/seller weeks ago and only discovered the problem after moving in
Customer: replied 1 year ago.
Is it possible that the existing condition itself--just so much running water nondisclosed--could be construed as a "material defect"?
Customer: replied 1 year ago.
Neighborhood is very nice and will kept. Though I am slowly learning that such water problems have a longstanding history.
Expert:  Ely replied 1 year ago.
Thank you.
According to 765 ILCS 77 (Residential Real Property Disclosure Act), the owner has to disclose unsafe conditions and material defects. However, while it lists the places in which to list this (chimney, walls, etc), it does not state WHAT to list.
This falls on a case by case basis.
As such, it is up to the Judge or Jury to decide whether or not that matter falls under material defect or unsafe condition. It really is on a case by case basis. So yes, there is possibly a suit, however, there is no guarantee. You would have to show that the seller KNEW of the condition, and, it was enough to damage the property and would be considered such a material defect or unsafe condition.
Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating 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.
Customer: replied 1 year ago.
Could the standard of knowledge of the seller be..."knew or should have known" inasmuch as he is a realtor/flipper/seller?
Customer: replied 1 year ago.
Might the standard of care be higher for such a professional in the field?
Expert:  Ely replied 1 year ago.
Hello,
Thank you for your follow up.
Could the standard of knowledge of the seller be..."knew or should have known" inasmuch as he is a realtor/flipper/seller?
Might the standard of care be higher for such a professional in the field?

There is no such statutory raising of standard, however, the Judge or Jury is likely to infer this, so yes, this can be argued, and likely would be helpful in the case. However, it still does not guarantee a win, I am afraid. So there is that gamble, since it is on a case by case basis.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
The statute you refer was not intended as comprehensive and does not bar other actions at law or in equity. So, forgetting that statute for a moment is there another avenue of
Customer: replied 1 year ago.
holding the seller to legal accountability?
Customer: replied 1 year ago.
Is this "chat" printable or does it just disappear when over?
Expert:  Ely replied 1 year ago.
"The statute you refer was not intended as comprehensive and does not bar other actions at law or in equity. So, forgetting that statute for a moment is there another avenue of holding the seller to legal accountability?"
I am afraid not. The buyer's recourse is in the court, for negligence and/or fraud.
NEGLIGENCE: The essential elements of a cause of action based on common law negligence may be stated briefly as follows: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525; Mieher v. Brown (1973), 54 Ill.2d 539, 541. See also W. Keeton, Prosser & Keeton on Torts § 30, at 164-65 (5th ed. 1984).)
NEGLIGENCE PER SE: Violation of statutory law by Defendant where Plaintiff is meant to be protected.
FRAUD: The elements of common law fraud are: (1) a false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4) plaintiff's reliance upon the truth of the statement; and (5) plaintiff's damages resulting from reliance on the statement. Board of Education, 131 Ill.2d at 452, 137 Ill.Dec. 635, 546 N.E.2d 580; Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 889 (1994).
Finally:
(765 ILCS 77/55)
Sec. 55. Violations and damages. If the seller fails or refuses to provide the disclosure document prior to the conveyance of the residential real property, the buyer shall have the right to terminate the contract. A person who knowingly violates or fails to perform any duty prescribed by any provision of this Act or who discloses any information on the Residential Real Property Disclosure Report that he knows to be false shall be liable in the amount of actual damages and court costs, and the court may award reasonable attorney fees incurred by the prevailing party.
- - -
As per your previous follow up, I had answered (in case you did not see):
"There is no such statutory raising of standard, however, the Judge or Jury is likely to infer this, so yes, this can be argued, and likely would be helpful in the case. However, it still does not guarantee a win, I am afraid. So there is that gamble, since it is on a case by case basis."
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
Can a false statement for fraud be inferred if there was an omission of a material defect that should have been disclosed?
Expert:  Ely replied 1 year ago.
Can a false statement for fraud be inferred if there was an omission of a material defect that should have been disclosed?
YES, absolutely.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
Well, my original question goes unanswered. Is such a condition--constantly flowing water undisclosed--likely to be construed as a material defect in and by itself with no other apparent damage at this time?
Customer: replied 1 year ago.
What kind of expert might say that such an unremitting flow of water is a serious problem, therefore, a defect and have legal credibility?
Customer: replied 1 year ago.
Whether the theory of the case be statute, fraud, or negligence?
Expert:  Ely replied 1 year ago.
The law provides that any unsafe condition/material defect should be disclosed. However, it is very vague on what that is, exactly. It allows the Judge or Jury to decide whether a situation falls under this. So it is on a case by case basis. There is no list that says "constant and unremitting flow of water through drainage tile into a sump pit fall under material defect," for example.
The law is construed so a Judge/Jury decides in the end. So the statutory law does not state which conditions are unsafe, but simply gives descriptions of such and then lets the trier-of-fact decide (Judge or Jury).
"Is such a condition--constantly flowing water undisclosed--likely to be construed as a material defect in and by itself with no other apparent damage at this time?"
Could it?
Definitely.
However, will it without a doubt?
This depends on the Judge or Jury.
-What kind of expert - a home inspector.
-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. Herein, I would lead with FRAUD, but also have NEGLIGENCE as a secondary cause of action as well. If I wanted to pursue this case.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
ok. Finally, can this entire dialogue be printed out or not?
Customer: replied 1 year ago.
No reply? Well, I feel like I got something for the money, but feel less than satisfied. Thanks for the interaction.
Expert:  Ely replied 1 year ago.
Hello,
My apologies for the wait.
I am still here, but had to step away for a moment.
Yes, this whole conversation can be printed out if you'd like.
I have to step away from the site for some time, however, I will be back in a few hours and if you have any follow ups by then, I would be happy to reply.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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