Home Defects: Things to Try Before Filing a Lawsuit

What if something was wrong with the property at the time you bought it, and someone—the seller, the seller's agent, or the inspector—could or should have told you about it but didn't? Try approaches such as a demand letter or mediation before rushing to court.

Upon finding defects in the house you bought, the urge to sue the home seller or other parties involved in the sale, can be strong. You might be feeling seriously angry, upon realizing that the defects might have arisen before the sale. Yet no one told you about them. Maybe they even hid them from you. But don't rush to court quite yet.

Even if you have a good legal claim against your home seller, selling agent, or inspector, you might be able to recover what you're owed more cheaply and with less stress by using one or all of the following methods:

  • getting your real estate agent involved
  • sending a demand letter, and/or
  • requesting mediation.

Raising the Matter With Your Real Estate Agent

Assuming the agent who represented you isn't the one you believe to be at fault, going back to that person should likely be your first step. Your agent should be in regular professional contact with the seller's agent, and both of them want to make sure the deals they supervise don't go sour. If yours is not a terribly complex situation, the agents might help arrange, for instance, reimbursement from the seller.

Sending a Demand Letter

By simply asking, in writing, that the responsible party pay the costs of repairing the defect, you might get what you want. A demand letter offers an opportunity to:

  • lay out the facts and evidence, including what defects you have discovered and what indications or expert opinions lead you to believe they existed and were likely known of before the sale
  • gently remind the recipients of their relevant legal responsibility, for example the seller's obligation to have disclosed known material defects, or the inspector's professional responsibility to have found them
  • state specifically what you want in order to resolve the issue, for example a certain sum of money, ideally based on estimates from contractors (which you should attach copies of), and
  • conclude with a subtle threat, stating that you will pursue legal action if your demand is not met.

You don't need a lawyer to write such a letter. Give it some close attention, though, and perhaps have others read over it. The goal is to make sure it is clear, polite, and professional. This is not the time to fire off an angry email.

Requesting Mediation

Another option is to tell a responsible party about the home-defect problem and—assuming the person doesn't agree to compensate you or fix the problem right away—ask for cooperation in arranging a mediation.

Mediation is a form of alternative dispute resolution, in which the interested parties work cooperatively toward a settlement or fair resolution, with the help of a neutral mediator. It's far less expensive than hiring an attorney (though you could certainly consult with some separately). Many communities have low-cost mediation services, in some cases associated with the small claims court.

The mediator is nothing like a judge, but is there to guide the discussion in a productive direction. That said, you should prepare for this event in some of the same ways as you would for a court proceeding. Gather the evidence that you want the other party to be aware of, write out a timeline of events if relevant, prepare a summary of your concerns and wishes, and bring written notes, or a bullet-point list, to work from. Be ready to compromise, but not too fast. The idea is to give the other party a chance to be heard, and craft a solution that everyone feels is fair.

For more information, see Mediation: The Six Stages. And if you find you need professional legal help, check out Nolo's Lawyer Directory.

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