Question:
Two weeks after closing my Buyers discover a flood in their basement, with water entering through one of the basement windows.
In the listing it’s written that there’s a sump pump but there isn’t any.
The Buyer’s lawyer said that if, in Schedule A we didn’t mention sump pump and inspection condition was cut off, then she can’t ask them, but they can file a complaint and start legal action. Is the lawyer right?
Answer:
Your lawyer has suggested:
1) filing a complaint, and
2) instituting legal proceedings.
Those would both be good courses of action. Not sure what else you might be expecting?
The sump pump was likely (99%) a fixture, so it should have been left. The exception would be if it were in a box in the garage, then, it’s a chattel. You only have to mention it in the Agreement of Purchase and Sale if it’s a chattel. Assuming that it’s a fixture, then, it stays without mentioning it.
Was there ever a sump pump at all? Do you have any proof? If it’s only referenced in the listing, then, you are precluded from suing the Seller in contract (assuming non-existence). However, you can sue the Listing agent under the law of torts for a false representation.
The larger issue appears to be the flood and consequential damages. Had there been previous flooding? Were there prior damages and repairs? Were these submitted to their insurance company for compensation? If so, this is sounding like a latent defect.
Obviously, your Buyers would be seeking compensation for the repairs from the Sellers and the costs of a sump pump from the Listing agent. Likely, this could all be handled in one lawsuit against the parties in Small Claims Court.
Brian Madigan LL.B., Broker