You’ve recently purchased your dream home in New York. A few days, weeks, or months later, you notice water pooling in the basement, that the septic system is faulty, or that the roof needs to be replaced. Do you have to pay for the repairs, or is it possible that someone else is at fault, and should pay? If someone else is responsible, how do you get that party to pay a fair share? Do you have to file a lawsuit or should you try something else first?
This article will examine the remedies available to you — the home buyer -- for defects in your newly purchased previously constructed home. It will also suggest actions to consider when you find a home defect.
For information about remedies for defects in a newly constructed home, see Nolo’s article: "New Home Construction Defects in New York: What Can a Buyer Do?"
The Basic Rule in New York Is Caveat Emptor
New York has a long tradition of applying the rule “caveat emptor,” or “let the buyer beware,” to most disputes between buyers and sellers. Under “caveat emptor,” New York courts have ordinarily refused to compensate buyers for home defects found after the purchase unless the seller did something to actively thwart the buyer’s efforts to inspect the property and find all of its defects. However, more recently, traditional New York law on home defects has been softening. Now, the courts recognize some remedies for disappointed home buyers in limited situations. Let’s take a look at some of those remedies.
Remedies Against the Seller Under the Property Condition Disclosure Act
New York law requires the seller to give you a disclosure statement before you sign the purchase contract. (This comes from the Property Condition Disclosure Act (the PCDA) (N.Y. Real Prop. Law §§ 460-467.) It also requires that the parties attach the disclosure statement to the purchase contract. For more information on the seller’s duties under the PCDA, and the disclosure statement itself, see Nolo’s article: "New York State Home Sellers: Disclosures Required Under State Law".
If the seller failed to give you a signed and completed disclosure statement before you signed the purchase contract, you were entitled to a $500 credit against the agreed-upon purchase price at the closing. If the seller gave you a disclosure statement, but it didn’t mention a known defect, the seller may be liable to you for your actual damages under the PCDA. See Calvente v. Levy, 816 N.Y.S.2d 828 (N.Y. App. Term 2006).
This is a departure from some earlier court rulings saying that there was no remedy for a buyer under the PCDA other than the $500 closing credit for failure to provide the form. However, your ability to obtain damages under the PCDA depends on your ability to prove that the seller had actual knowledge of the defect, and did something to prevent you from finding out.
Notwithstanding your remedy under the PDCA, you still have all of the other remedies available under New York law. So, let’s review the buyer’s remedies under other New York laws.
Remedies Against the Seller Under General New York Case Law
In addition to the remedies available to you under the PCDA, you may be able to obtain damages under New York case law (also called "common law"). New York case law is state law that is created by the New York Appellate Courts. When a judge in one of these courts writes an opinion in a case, the rulings within become law.
Let’s take a look at some of the remedies that have been created by the New York Appellate Courts.
Fraud or Fraudulent Misrepresentation
The seller may be liable to you for fraud or fraudulent misrepresentation if you can prove the following elements of this claim:
- the seller made a written or oral statement of fact that was false, and known by the seller to be false, or omitted a material fact
- the statement or omission was made, or not made, to induce you to rely upon it and purchase the property
- you relied upon the statement or omission, and you were justified in so relying, and
- you sustained an injury due to your reliance on the statement or omission.
To prove fraud or fraudulent misrepresentation, you will need to show that you were justified in relying on the seller’s false statement or omission. If, for example, you hired an engineer to make an inspection, but the inspection was inconclusive, a New York court may deny your claim for failure to make a further inspection.
However, if the seller actively concealed the defect, or if the defect was something only the seller knew about, and you could not have discovered it on your own, even through a very reasonable and diligent inspection, the seller may be found liable. Some New York courts consider false statements in the PCDA disclosure statement to be evidence of active concealment of the defect by the seller. See Simone v. Homecheck Real Estate Services, Inc., 2007 NY Slip Op 6224 (N.Y. App. Div., 2007).
Breach of Contract
Depending on the specific terms of your purchase contract, the seller may be liable to you for breach of that contract. To prove breach of contract, you will have to show that the seller gave you a warranty against the defect in the contract, and that the warranty did not merge into the deed (the document that the seller gave you at the closing passing title to you).
Proving that the seller gave you a warranty in the contract may be difficult because the standard New York purchase contract contains an “As Is” provision stating that you — the buyer-- have agreed to purchase the property in the condition it is at the time of the contract, without any warranties from the seller. The PCDA disclosure statement is supposed to be attached to the contract, but the disclosure statement specifically states that it is not a warranty, so you cannot use the representations in the statement to help you prove breach of contract.
Even if your purchase contract does not contain the “As Is” language, or includes specific warranties of the condition of the property, these warranties often expire after the closing by their own terms, or under the “Doctrine of Merger.”, a general New York law of contracts basically meaning that all warranties in the contract merge into the deed of the property given to you by the seller at the closing. You can avoid the merger if your purchase contract specifically states that all or some of the provisions will survive delivery of the deed.
Remedies Against the Brokers in the Transaction
The general rule of “caveat emptor” that applies to the seller also applies to the seller’s broker or agent, sometimes known as the listing broker. The listing broker is not required to disclose property defects to you. However, the listing broker has some limited disclosure obligations under the PCDA, and potential liability to you. If you are not represented by your own broker, a buyer’s broker, in the negotiation of the purchase, the listing broker is supposed to explain the disclosure requirements of the PCDA to you, and may be liable to you for having failed to do that before you signed the contract.
Your buyer’s broker may be liable to you for fraud, misrepresentation, or negligence under laws that govern the relationship between principals (i.e. you—the buyer) and agents (i.e. your buyer’s broker). To prove one of these, you would have to show that your broker knew of the defect and failed to tell you. You'd also have to prove that you did not know about the defect and had no ability to discover it through your inspection or other research, such as by making inquiries with neighbors or the local governing body. See Daly v. Kochanowicz, 2009 NY Slip Op 6232 (N.Y. App. Div., 2009). It is important to note that the “As Is” language in the purchase contract will not protect your broker from liability to you.
For more information about brokers’ responsibilities and potential liability to a buyer, see Nolo’s Article: "New York Home Sales: What the Listing Real Estate Broker Must Disclose".
Taking Action If the Inspector Violated Licensing Requirements
In New York, regulations written by the Department of State Division of Licensing Services (the “Licensing Department”) govern inspector licensing requirements, rules for home inspection contracts, and minimum standards for home inspections and inspection reports. (Title 19 NYCRR Section 197.4 -197-5.) The regulations require that home inspectors provide all customers a written contract describing the cost and the scope of the inspection, and inspect at least those home systems and components listed in the regulations.
The Licensing Department allows home inspectors to limit their liability to you in the contract. They may do so by limiting the scope of the work to certain systems or components of the home, or limiting potential damages to an amount specified in the contract or to the cost of the inspection.
While New York courts have ruled that you may not sue the inspector directly under these licensing regulations, you may point to a violation of the regulations as evidence of negligence in a lawsuit against your home inspector (see below for a description of possible negligence claims). You may also report your inspector to the Licensing Department for failure to follow the regulations. Filing such a report will not result in reimbursement of your losses, but could prevent the inspector from committing further regulation violations or negligence.
Remedies Against an Inspector for Negligence or Gross Negligence
You may be able to sue your inspector for negligence if :
- the defective item was within the scope of the inspection described in the inspection contract, and
- the inspector failed to find the defect due to having failed to make a reasonable inspection within the scope of the inspection described in the inspection contract, or
- the inspector failed to report the defect to you.
However, an inspector may not be liable if the report raises a red flag about the defect and gives you an opportunity to purchase a more detailed inspection of the item for an additional cost. See Dickler v. The Housemaster, 2006 NY Slip Op 50174 (Sup. Ct. Nassau Co. 2006).
New York courts will typically enforce liability limitations contained in the inspection contract. They may refuse to grant you damages if the contract excludes the defective item from the scope of the inspection or limits damages to an amount specified in the inspection contract. However, the courts may ignore liability limitations in the contract if the inspector is grossly negligent. Gross negligence is usually described as intentional wrongdoing or conduct that shows reckless disregard for the rights of others.
Consumer Protection Law Remedies Against Seller or Broker
It may be possible for you to sue a seller or broker for damages under the New York state consumer protection law. (N. Y. Gen. Bus. Law §349). The law prohibits deceptive acts or practices in the conduct of business or in the furnishing of any service within the state. The law has been applied to the sale of condominium units and shares in a cooperative, and one New York court has suggested that it may apply to the sale of refurbished foreclosed homes by a company engaged in these sales as its business. See Polonetsky v. BETTER HOMES, 712 N.Y.S.2d 801 (N.Y. Sup. Ct., 2000).
New York City has its own consumer protection laws that apply to homes located in the city. Consult an experienced real estate attorney in your community to find out whether a similar local law might apply to you.
What to Do When You Discover a Home Defect
It is important to act quickly after discovering a home defect, because liability is limited by time. You should take the following steps immediately to protect your rights:
- review your purchase contract for “As Is” warranty merger provisions or any other contractual warranties or limitations on your rights against the seller
- review your inspection contract and inspection report to determine whether the inspector should have found the home defect; whether the report listed the defect or raised any red flags that should have been further investigated; and whether the inspection contract limits the liability of the home inspector
- investigate — ask your neighbors or local officials whether they know anything about the defect or ever saw any workmen , or issued construction or repair permits; and consider hiring an inspector to assess what conditions would have been present and visible at the time of sale, and
- write a demand letter to the party you believe responsible, describing the defect, why the party is responsible, and asking for a specific repair, or a dollar amount for the repair (this serves a double purpose: if it doesn't work to avoid a lawsuit, it will serve as evidence regarding the nature of your claim and your attempts to take appropriate action if you decide to sue).
You may wish to contact the attorney who closed your purchase, or another experienced real estate attorney, to help you with these steps.
How Much Compensation You Can Ask For
If a court finds that the seller is liable to you, you will be awarded an amount representing your actual damage — the amount of money it takes to compensate you for your loss and make you whole, but no compensatation beyond your actual loss. This amount is usually determined by adding up all of your bills for repairs or replacement to correct the defect.
New York courts have recognized that there may be a few circumstances under which punitive damages (damage in addition to costs, to serve as punishment) may be awarded to a buyer. However, the courts typically limit punitive damages to situations where the evidence shows that the seller’s conduct was outrageous or deliberate, with spite, malice, or evil motive, or with such disregard for the interests of others that it could be called willful or wanton.