Imagine that you buy a home in Idaho. Before the sale, the owner of the home gives you the legally required disclosure form, which is meant to identify any “defects” in the property; that is, any major physical problems that might lower its value. Defects could include a broken garage door, a leaky pipe in the basement, an electrical problem, and so on. The form essentially says that the home is in fine condition; the owner reports no problems. You move ahead with the sale.
But when you move in, you discover that the seller was not exactly forthcoming in filling out the disclosure form. The hot water is unreliable, and there seems to almost no running water on the second floor. You have a plumber and engineer evaluate the situation; it will cost you a small fortune to repair.
Do the laws of the Gem State allow you to recover any of this money from the home seller, who failed to disclose them to you? Under Idaho law, you may have a viable cause of action.
Generally, sellers of residential property in Idaho are required to disclose to prospective buyers certain defects with their home that could impair its value. The seller should have made these disclosures to you in writing before you signed your purchase contract.
Specifically, Idaho Statute 55-2501, et seq. mandates that the seller must make certain disclosures to potential buyers within ten days of the date of the offer to purchase the property and before a contract is executed. As the legislation itself states, the intent of the statute is to promote "public health, safety and welfare and to protect consumers.”
Idaho is somewhat unusual in that it codifies the entire disclosure form, which is relatively short compared to that used in other states, within the legislation. Idaho Statute 55-2508 contains the entire text of the disclosure form that you should have received from the seller. (This document is likely in the many legal papers you have from your purchase).
Idaho’s two-page codified form asks a series of questions about the conditions of various aspects of the property. For example, it asks the seller to state whether he or she is aware of any problems with respect to the foundation, electrical system, heating, plumbing, septic system, and major appliances.
While it is good that Idaho requires all of these disclosures from the seller, you should remember that the seller was not under any obligation to verify any of the disclosures with a formal inspection or engineering report. The seller was required to disclose only those defects or conditions within his or her actual knowledge.
Idaho’s disclosure form specifically states that “the Seller does not possess any expertise in construction, architectural, engineering or any other specific areas related to the construction or condition of the improvements on the property. [Moreover] the Seller has not conducted any inspection of generally inaccessible areas such as the foundation or roof. It is not a warranty of any kind by the Seller or by any agent representing any Seller in this transaction. It is not a substitute for any inspections. Purchaser is encouraged to obtain his/her own professional inspections.”
All of this language essentially means that the seller is under no affirmative duty to, for example, hire a mechanical engineer to ensure that the sewage system is working correctly before submitting the form. And hopefully you read the language of the form before the sale, and conducted inspections. But even an expert home inspector doesn't always find every problem (though if the inspector truly fell down on the job, you might have a separate cause of action there.)
In theory, both you and the Idaho home seller should have signed the disclosure form at the bottom to acknowledge that it was given and received. Assuming this was done and you have a copy of the form, you should be able to easily discern what was and was not disclosed.
Idaho law is clear that if you discover serious defects in the home that the seller failed to disclose, you may have a cause of action against him or her. Idaho Statute 55-2517 mandates that “any person who willfully or negligently violates or fails to perform any duties prescribed by any provision of this chapter shall be liable in the amount of actual damages suffered by the transferee.” In plain English, this means that you can sue the seller for the cost of repairing whatever defect you have now discovered in the home.
Moreover, Idaho Statute 55-2516 mandates that “Each disclosure required… shall be made in good faith. For the purposes of this chapter, good faith means honesty in fact, in the conduct of the transaction.” Clearly, the Idaho legislature wants sellers to be honest and forthright; this is the sort of language that you could use against your seller in court if he or she tried to obfuscate with regard to any information on the form. “Good faith disclosures” is legalese for “no funny business.”
If you discover serious problems with the home after moving in, you should document everything: take pictures, and keep receipts of all of your expenditures. Then meet with an experienced Idaho real estate attorney to advise you on whether you can sue the seller under Idaho’s buyer-friendly statute.
In addition to the statute, your attorney may suggest suing for breach of contract or fraud. Breach of contract comes into play when the seller made you a promise, typically in the purchase contract, that he or she did not keep. Fraud comes into play when the seller directly lied to you to induce you to purchase the property--for example, by claiming that certain aspects of the home were in tip-top condition.
Your lawyer will be able to look at the totality of your situation and make a recommendation as to whether or not a lawsuit is likely to be successful. Be cautious, however, regarding the costs of litigation. Depending on the scope of the defects, you could risk spending more on your legal fees than you could recover in court. Broadly speaking, you should be hesitant to litigate unless the damages you have suffered are truly significant. If you do need to sue, however, you are fortunate that Idaho’s statutes are generally buyer friendly.