You’ve found your new home, negotiated a contract to purchase, completed your due diligence and finally moved in. Once you’ve settled in, you discover a defect. What should you do? Do you have any recourse?
Your first best course of action is to do everything possible to ensure that you uncover any possible defects at the earliest stage in the purchase process, so when engaging a real estate agent, ask about entering a Buyer Brokerage agreement to ensure that the real estate agent represents your interests as a client (and not a just customer). The difference here is that the real estate agent now has a higher duty to you and an obligation to not only disclose obvious defects but to seek all information that could uncover and warning signs. Also, the real estate agent under a Buyer Brokerage Agreement acts more as a consultant than a salesman and is ensured that when you locate the right home he will be compensated, so is naturally less anxious to sell you a home that is not ideal. This motivates the real estate agent to seek out defects to ensure his clients satisfaction rather than simply observe and point out the obvious. During the negotiation the Seller has an obligation to disclose any latent defects and it is often helpful to ensure that you ask the right questions to uncover and historical defects that were repaired (and could reoccur).
Second, when negotiating always ensure that you make any offer contingent on a home inspection. Obtain the services of a qualified home inspector by seeking recommendations from other satisfied buyers or your real estate agent. A proper home inspection can uncover most issues and also acts as a operating guide to your new home. To this point it is often helpful to attend the inspection so you can receive more valuable insight and instructions on how to operate and maintain your new home.
Now that you’ve done everything possible to ensure an absence of defects ensure that the home is as viewed when you negotiated and that all appliances are operating properly at closing. Common terms require the home to be in the same state of repair as when you viewed the home so to best ensure this it can be helpful to take photos of the condition of the property when viewing or refer to the listing agents promotional material. Also ask to perform a walk-through inspection of the property just prior to closing (it should be written and included as a term of your contract). This often precludes issues by allowing the lawyers to negotiate a settlement if any issues occur but their is no expressed allowance in the contract to withhold monies so if the buyer will not rectify an issue the buyer still must perform their obligation to close and rely on civil action to find their remedy.
And if all else fails legal action through the courts are your last recourse. The Seller is required to disclose any latent material defects that they are aware of and that may not be visible to a Buyer at the time of sale. Proving this can sometimes be a challenge so ensure that you are armed with well documented evidence to build your case and plenty of time (and money for legal fees) to wade through the courts.
Clearly the best prescription for defects is avoidance by ensuring you take the proper steps before your purchase your next home.