Seller Liability for Post-Closing Water Issues

This spring has brought persistent and record breaking rainfalls to northeast Illinois.  We have been contacted quite a bit lately about people experiencing water damage and flooding issues in recently purchased homes.  We are frequently asked when a seller can be held liable for these problems.

Illinois has a statute known as the Residential Real Property Disclosure Act.  It requires the seller of  residential property to disclose all known physical defects in the condition of the property.  Past issues which the seller reasonably believes to have been corrected need not be disclosed.  In other words, a seller does not have to give a buyer a repair log of everything that was ever broken during the time the seller owned the home.

An honest seller will have no liability for problems which first arise after closing.  The mere fact that a problem arose quickly after closing does not mean that the seller must have known about the issue and must have concealed it.  To the contrary, a purchaser has a high burden of proving to a court that the seller deliberately concealed a problem.  Generally, third party evidence is needed to prove seller concealment.  A former tenant, a neighbor or a contractor who has knowledge of pre-closing defects could testify as to the condition of the home before it was sold and the sellers failure to correct known problems.  With that kind of evidence available, a buyer can pursue a claim against the seller for the reasonable cost of repairs plus their attorney’s fees and court costs incurred in pursuing their claim.  Without such evidence, the case may be impossible to win.

Home buyers should always get a home inspection before committing to a purchase and should engage in their own due diligence so they know what is being purchased.  Proving a post-closing defect case against a home seller can be very difficult so one should never assume that they are getting any kind of warranty or guarantee from a seller regarding the physical condition of the home.  A good home inspector and real estate attorney can help you minimize the possibility of post closing problems.