After years of saving and months of planning, you’ve just bought a home in the Cornhusker State. But what if your new abode is not as wonderful as you remembered it from the showings and walk-through? Perhaps the shower only runs cold water, or the electricity flickers throughout the home, or the staircase appears to be structurally unsound. Not only are these problems frustrating and surprising, but they could also decrease the value of the property that you just invested in.
If you just purchased a home in Nebraska and face these sorts of unexpected defects, what remedies might you have? Did the folks who sold you the property have a legal duty to disclose such defects before the sale?
Nebraska law requires that home sellers tell prospective purchasers about defects in their property. You should have received such disclosures in writing from your seller on or before the effective date of the purchase contract--a date that is most likely specified in the agreement. If you have now discovered a defect, your first step should be to dig through your records and locate the seller’s disclosure.
Specifically, Neb. Rev. Stat. § 76-2,120 provides: “Each seller of residential real property located in Nebraska shall provide the purchaser with a written disclosure statement of the real property’s condition.” The law applies both to outright sales and to leases with an option to purchase.
Nebraska’s legislature was very specific about the information that the seller was required to disclose to you. Neb. Rev. Stat. § 76-2,120-4 says that the disclosure must include: (a) the condition of all appliances that are included in the sale and whether they are in working condition; (b) the condition of the electrical system; (c) the condition of the heating and cooling systems; (d) the condition of the water system; (e) the condition of the sewer system; (f) the condition of all improvements on the property (such as renovations or expansions); (g) any hazardous conditions, including substances, materials, and products that may be an environmental hazard; (h) any title conditions affecting the property, including easements and zoning restrictions; and (i) the utility connections and whether they are public, private, or community.
Per the statute, Nebraska’s Real Estate Commission created an official disclosure form that your seller likely used (take a look at this version, free online; hopefully, you saw a similar form before the closing). In accordance with Neb. Rev. Stat. § 76-2,120-5, the seller was required to complete the form “to the best of [his or her] belief and knowledge as of the date the disclosure statement.”
Fortunately for you, Nebraska has some very buyer-friendly provisions in its disclosure laws. If the seller failed to issue a disclosure statement, or lied on that statement, you have a legal cause of action against him or her. Neb. Rev. Stat. § 76-2,120-8 says that if a sale occurs without a proper disclosure, the buyer can sue the seller and recover the actual damages, court costs, and reasonable attorney’s fees.
Importantly, however, this statute also includes a statute of limitations, limiting lawsuits to within one year from the date that you take possession of the property. This means that you cannot sit on your hands after learning of a defect in your new house.
Sellers are not liable for every defect in the home--only for defects about which they actually knew, but failed to disclose. Neb. Rev. Stat. § 76-2,120-8 provides that the seller “shall not be liable under this section for any error, inaccuracy, or omission of any information in a disclosure statement if the error, inaccuracy, or omission was not within the personal knowledge of the seller.” In other words, Nebraska’s legislature does not force home sellers to promise or deliver perfect houses to buyers; it merely tries to make sure sellers have no incentive to lie.
Even beyond the statutory cause of action, you may have two additional common law causes of action under Nebraska law: fraud and breach of contract.
The concept of fraud means one party made a statement that was knowingly false in order to induce another party to take an action. For example, imagine that the seller told you (verbally or in writing) that the kitchen appliances were brand new. However, when you moved into the home and the refrigerator failed soon after, the repairperson told you it was years old and near the end of its life. Obviously, this false statement was made to induce you into purchasing the house and might constitute fraud.
You may also have a breach of contract cause of action against the Nebraska seller if the language of your contract made certain guarantees. For example, if your purchase contract specifically stated that the seller would deal with all asbestos in the ceiling tiles before closing, but in fact never did this abatement work, the seller would be in breach.
What should you do if you discover a serious defect in your newly purchased Nebraska house? After you locate the disclosure documentation and gain a sense of whether the seller omitted material defects from the form, it might make sense to have a consultation with a real estate attorney.
The attorney might begin by writing a strongly worded demand letter to the seller, stating the problem and making a request for payment. Often, this sort of a formal letter can at least provoke some settlement discussion. If the seller still refuses to respond or negotiate, it may be time for a lawsuit. Remember: Because of Nebraska’s one-year limitations period, you must act promptly after you discover the defect.