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KASS: Proof needed that defects were known

DEAR BENNY: The purpose of this email is to ask advice regarding a $5,300 loss for repairs, intentionally hidden by the seller, to a house I purchased for my mother and me to live in. The date of the closing was June 10.

You recently had an article similar to my case, titled, “Do the right thing: Agents should disclose all defects.”

My particular case involves a large foundation crack resulting in moisture seepage on the floor and surrounding walls in one of the seven rooms in the basement. Since this room is unfinished, we wanted to install insulation and drywall, but first we had to remove the “new” carpet that the seller installed on the floor in this room. This is when we discovered the crack and large wet areas. After removing the carpet in this room the stench of dampness was very strong and quickly spread throughout the house.

Because there was the “new” carpet, this condition went undetectable during the inspection process.

The seller is an investor and purchased the house for a reduced rate – he never lived in the house – remodeled it, covered up the foundation crack and moisture leaks with the same new carpet he used throughout the entire basement and sold it to me for more than double what he paid for it.

My lawyer said there is nothing that can be done because we have already closed on the home. My Realtor was unaware of this condition. If you can provide me with information on resources to pursue to expose this fraudulent act of the seller and his Realtor, I would really appreciate it. – Valerie

DEAR VALERIE: First, let me caution you about calling someone’s actions fraudulent; if it’s not true, you can be sued for libel.

I don’t agree with your attorney. Just because you have gone to title does not preclude you from filing a lawsuit. There is in the law a concept known as “the discovery rule,” Your case starts – and the applicable statute of limitations begins to run – when you first discover a problem. While I cannot provide you with a legal opinion, it would seem you still might have a case based on your recent discovery. More importantly, the typical statute of limitations is two or three years; you just bought the house.

However, you need proof. Did your seller know about the crack? Did he instruct the carpet company to cover it over? Have you discussed the matter with the carpet company to see if you can get the proof you need? I suspect that company may be very reluctant to talk with you for fear they may also be sued.

Get yourself a different attorney to determine if you have a case.

DEAR BENNY: We are a 51-member condominium with a board, a building and grounds committee, a finance committee, a hospitality committee, a rules and regulations committee, and some ad hoc committees as needed. Do we get the best governance when some members serve on three or four committees?

Also, a tough question: How do we deal with a very vociferous member who often dominates most meetings if she is in attendance? – Jane

DEAR JANE: The ideal situation is where every owner participates in one of the committees created by the board. In every association, there is a wealth of untapped talent, such as accountants, carpenters, and lawyers. Unfortunately, many people buy into a community association so that others can cut their grass or shovel their snow.

So, to answer your first question, since we can’t achieve the idea, use as many volunteers as possible to serve on all committees.

How do you handle noisemakers who disrupt meetings? First, make it clear that the board will hold a hearing and fine her if she continues to be disruptive. That may work.

If not, many boards consider hiring a private security officer to stand in the back of the room. That often intimidates the noise person, who does not want to be “dragged” out of the meeting.

And if all that does not work, ask your attorney to consider filing an injunction against the person. Your bylaws may even give you the right to seek legal fees should you be the prevailing party.

Benny Kass is a practicing attorney in Washington, D.C. and in Maryland. He is not providing specific legal or financial advice to any reader. He wants readers to e-mail him, but cannot guarantee a personal response. He can be reached at: mailbag@kmklawyers.com.

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