home inspectorLet’s say you are about to buy your first home and after several open houses, you finally find the house you want to live in for the next 20 years.

You sign all of the boiler plate contracts. You have the home inspected. There are no defects found by the inspector and the sellers deny in writing that there is anything wrong with the home, including any problems with the plumbing.

You complete the purchase and move in. Three weeks of bliss is then followed by several thousand dollars of misery as one thing after another requires repair.

Let’s say that one of these items is an ancient leaky set of pipes. You call a plumber to fix the problem and during his initial inspection, the plumber calls you over and asks how you managed to live in the house with such a defective plumbing system. Before you answer that you just purchased the home, the plumber comments that the pipes leak constantly and that there appears to be several areas in the floor boards that were recently replaced. He also tells you that he could tell that the plumbing system was grossly inadequate upon a simple visual inspection.

You immediately think back to the nice people that sold you the home and who checked off the boxes in the boilerplate contract that there were no prior leaks and realize that they lied to you. Your initial instinct is to call a real estate attorney (a good instinct, by the way). However, the attorney tells you that you do not have a case. The next four attorneys you call tell you the same thing. How can this be? The sellers affirmed in writing that there were no prior water leaks and you are certain they lied because of what the plumber found.

The answer is simple. California law imposes a duty on the buyers of real estate to perform inspections.  (Kahn v. Lischner (1954) 128 Cal. App. 2d 480, 489-490 (a buyer “should not be permitted to blindly rely upon statements of interested parties when means of correct information was at hand”); Carroll v. Dungey (1963) 223 Cal. App. 2d 247, 255 (“Plaintiff’s approach to this transaction was best described by the prophet Jeremiah, . . . ‘None so blind as those that will not see.'”).) The leading treatise in California real estate law, Miller & Starr, comes to this same conclusion. In fact, the California Association of Realtors distributes a standard form “Buyer’s Inspection Advisory.” (California Association of Realtors, Form BIA-A, Revised 10/02.)

To say it simply, a buyer of residential real property, consisting of four units or less, is charged with knowledge of all conditions that are patent, obvious and apparent by visual observation during an inspection conducted with ordinary diligence, notwithstanding anything to the contrary represented by the seller. What is or is not patent and obvious at the time of the inspection depends on the facts of the particular case. In your case, you had the home inspected by a professional. The defects (according to your plumber) were patent and obvious and readily observable. In all likelihood, a court would find that you could not justifiably rely on the sellers’ lies that there were no prior leaks.

I am not suggesting that you can lie to prospective purchasers of your house and get away with it. You should be truthful to a fault. Although many people do lie and get away with it, the real lesson to learn is to be diligent when purchasing a home. Even if you are lied to, you may not be without a remedy, perhaps against your inspector and your realtor. Hopefully, they have insurance! Hire experienced inspectors and ask questions. All questions you ask the seller should be documented, along with their answers. If you think there is anything wrong with the house, ask the inspector to look at it carefully.

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