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Ask Barrister Your Own Question
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 36210
Experience:  16 years real estate, Realtor. Landlord 26 years
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I just moved into a home in California and there is a full

Customer Question

I just moved into a home in California and there is a full time licensed daycare next door that is very loud. The seller never disclosed this. I work nights. I want to move. Do I have a case?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
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Did you actually purchase the house or are you renting it?
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Did you have an opportunity to inspect the house prior to renting/purchasing?
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thanks
Barrister
Customer: replied 1 year ago.
We purchased the home in April 2015 (this year). We did go through the inspection and disclosure process. Walk-thrus were done on weekends when the daycare was NOT in session. The sellers did not disclose several things including water damage due to a roof leak in 2011. They have not been forthcoming. There is a pattern of their NOT disclosing issues. We are going to put the house up for sale within the year. We need to fix things up to re-sell because we plan on disclosing all the issues - including the daycare next door. We expect to have a difficult time re-selling this house due to the daycare. I also expect that it will hurt the selling price. We would NOT have purchased this home had we known there was a daycare. We planned on living here until my son graduated from high school - in 6 years, but the noise situation is untenable. I am hoping to get back some of the brokers fees that I'll have to pay to move again. We paid $700,000 for the home. Can we reasonably expect to recover any of the money we put out? Could we lose and get stuck with their attorney's fees? I've never been through this before... Thanks for the help - Don
Expert:  Barrister replied 1 year ago.

Ok, from a purely legal perspective, the existence of the daycare wouldn't be something that the seller would have to disclose because it is the burden on the buyer to do their due diligence in checking out the neighborhood prior to signing a contract to determine if that is where they want to live. So the seller isn't responsible for giving the buyer any information about the crime rates, neighboring businesses, traffic levels, etc. These are all things the buyer has to investigate on their own.

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The seller has to disclose material things that affect the house directly. So if they didn't disclose prior water damage, then that is definitely a breach of their duty to disclose. The measure of damages would be what the house was worth considering the prior water damage vs. a house with no water damage. This would have to be calculated by having an appraisal done based on damage/repair vs. never damaged. But if the repairs were correctly done, the difference might be minimal.

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So while you could recover for any specific problems or defects with the house that they were aware of and failed to disclose, but the neighbors and neighborhood is something that they can't be held liable for.

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With all that said, honestly, if there aren't lingering issues from the leak and it has been properly repaired, I think you would have a hard time justifying the legal costs involved in trying to sue them considering the uncertain outcome of a recovery.

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thanks

Barrister

Customer: replied 1 year ago.
Thank you, ***** ***** what I was hoping to hear, but good advice. I am told by my real estate broker and another attorney that we MUST disclose the daycare when we go to sell this house - otherwise we are liable. If we KNOW it is a quality of life issue we MUST disclose. Not disclosing issues such as this actionable. So I guess they can get away with it, but we can't. Sometimes the law sucks.
Expert:  Barrister replied 1 year ago.

You are very welcome. I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...

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However, the general rule is that if it would make a difference to you, then you should disclose it. But that is an entirely subjective determination that depends on the owner. A person who works the same hours as the daycare might not mind at all that it is there because it would ensure a quiet neighbor at night.. Or a grandmother who loved little children might find it a plus... But someone who works nights and is trying to sleep during the day would be disturbed by squealing children playing...

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So what bothers one person may not bother someone else. So I would argue that it isn't something that would be mandatory to disclose as it is a subjective determination, not a concrete measurable one. But the safest thing to do is disclose it if there is a question because that guarantees that you won't get sued, even if you would win.

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As an aside, in addition to being an attorney, I have also been a licensed Realtor for over 11 years...

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thanks

Barrister

Customer: replied 1 year ago.
All good points, Barrister. I think you are right but it still sucks. I bought a house that has black mold and a daycare next door. Neither of which we knew about. Both of which we hurt the value of the house. Thank you again for the help.
Expert:  Barrister replied 1 year ago.

If there is black mold due to the leak, then that is definitely something you could sue for damages to cure any mold issues. I thought you just meant there was a leak and it was fixed properly and they didn't disclose it. If there is a black mold problem, then you can get estimates for the cost of remediation for the mold and then have an attorney send them a demand letter for the costs or threaten to sue them...

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But I would agree that the fact that there is a daycare center will probably not appeal to night workers..

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thanks

Barrister

Customer: replied 1 year ago.
I think we can recover the mold remediation and repair. But truly what we want is the house we thought we were buying. A quiet home with a decent roof and no mold. Instead we got a leaky roof, black mold, and a full time daycare. Did I mention that the drop off for the daycare is at their front door which is literally 25 feet and one window from our master bedroom? No one could sleep through the 7am drop offs with screaming kids. The sellers HAD to know this was a problem. But proving it is another thing. We are just screwed. Our house is a private home in a neighborhood. You would think zoning ordinances would require a disclosure. How can a business in a neighborhood be allowed to disrupt our life. Seems wrong.
Expert:  Barrister replied 1 year ago.

I regretfully have to agree with you.. I think you are good on the mold and roof issues for recovering but proving damages for the daycare is a tougher burden..

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With that said, maybe when you put it on the market, it will appeal to someone who works during the daycare hours, so it won't even be an issue to them. I definitely wouldn't portray it as a negative, I would just mention that it has "immediate daycare services available" since it is next door. That kind of paints it as a positive, especially for a single parent who might actually need those services..

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thanks

Barrister

Customer: replied 1 year ago.
I will try and say that to any potential buyers with a straight face. Thanks gain for the help - Don
Expert:  Barrister replied 1 year ago.

You are very welcome.. Glad to help any time..

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thanks much

Barrister

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