ask george & chuck
Oct. 27, 2008

Limitations of inspections, failure to disclose
Answers to real estate questions as appearing
in the Houston Chronicle

Dear George: I bought my house 14 years ago and recently discovered that it has insulation in walls, no studs for several 48-inch spans, and non-existant air ducts. I had the house inspected before I bought it. Shouldn't the inspector have noticed some of these problems?

Answer: The inspection process is limited to what the inspector can see. If a wall, partition, or something too heavy to move blocks the inspector from seeing an area of the house, that area is usually not included in the report; the inspector usually notes such cases. The items you describe probably were not included in your inspection report. You may never know if there was a failure by the seller to disclose a material fact or an intentional misrepresentation of a material fact. Since it's been 14 years since you bought the house, you'll have a hard time proving either.

Dear George: The previous owner of my home was on the board of our homeowners association. I discovered after my purchase that HOA violations existed but were not disclosed, nor were they known by the HOA. However, as soon as I took residence, I received notices of violations from the association. Can I pursue legal action for failure to disclose, even if the property was purchased in an “as is" condition?

Answer: It's possible to pursue legal action against the prior owner for at least failure to disclose. Based upon what you stated, there may even be an element of fraud, since you claim the seller lied about material facts and you relied on the seller's disclosure. The fact that you made an "as is" purchase could be deterimental to your case; however, you purchased on an "as is" basis because you relied upon the seller’s disclosure, which turned out to contain misrepresentations of material facts.