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We recently bought a house in Nebraska, USA. I am British and this was my first experience of the US home buying process (and I hope my last!). I am hoping for some guidance as to whether either the surveyor or the seller are liable for issues we have found after the purchase.

The survey found very few issues with the house, which was built in the 1960s. Really only a few advisories like "clean the chimney regularly".

We tried to light a fire this weekend and ended up with a house full of smoke. The chimney sweep has arrived today and discovered that none of the 3 chimneys are safe to use (2 fireplaces and one furnace). He suggests the easiest and cheapest way to make them safe is to drop a stainless steel liner down at a cost of $3,000 per chimney (plus labour).

To make matters more difficult the seller was our realtor, so it isn't really possible to ask to speak with him in his realtor capacity about the seller...

Do we have any recourse here, or is it something that we have to cover ourselves, or maybe possible to claim off the insurance?

  • They have obligation to disclose known faults, but it's hard to prove that they knew about the faults. Most inspections are visual only and they often are limited in liability to the cost of the inspection itself. – Hart CO Dec 19 '17 at 18:16
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    If you "surveyor" was a licensed home inspector, than he/she would be liable for a major oversight in most US legislation. That's why there is a licensing program and an insurance that goes with it. See for example: homeguides.sfgate.com/… – Hilmar Dec 19 '17 at 18:33
  • He is licensed in the state of Nebraska and insured, so perhaps this is the direction to go – Blair Dec 19 '17 at 18:36
  • Who chose the inspector/surveyor? I'd be suspicious if it was someone the realtor/seller suggested. – chepner Dec 19 '17 at 18:38
  • What exactly makes the chimneys unsafe to use? Is it something that an inspector would be able to detect visually, or does the chimney sweep have specialized equipment/skills that brought him to this conclusion? – CactusCake Dec 19 '17 at 18:55
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From a real estate legal advice site, the seller may be liable if:

  • The seller gave the buyer some sort of warranty or guaranty
  • The seller committed fraud - usually a material (or important) misrepresentation (or lie)

It's also possible that your home inspector is at fault, having done a poor inspection. As noted on the legal advice page above:

As to the home inspector: generally, the agreement or contract by used when you hire an inspector strongly limits their potential liability. A buyer should review (and/or have an attorney review) the agreement to see if and when, and to what extent, the home inspector may be liable. As a general rule, an inspector who actually inspected the premises and had the credentials he or she claims would probably not be liable (or if liable, probably only to a limited extent). However, if the inspector committed fraud (isn’t trained like he represented; didn’t actually conduct the inspection he claimed) or possibly was grossly negligent (e.g. did the inspection while drunk), then there may be liability.

Matters are further complicated by the fact that your seller is your realtor - he/she has professional fiduciary responsibilities to you as your representative. Per this Nebraska Real Estate Commission page:

If you feel a licensee (broker or salesperson) has made a misrepresentation or not followed their duties or obligations under the license law you may file a complaint with the Commission. If you are unsure as to whether the grounds for a complaint exist please contact our office by phone or e-mail and we will be glad to discuss it further.

The information for filing a complaint is found on this page:

Nebraska Real Estate Commission

  • Phone: (402) 471-2004
  • Fax: (402) 471-4492
  • e-mail: realestate.commission@nebraska.gov

My suggestion would be to contact the Nebraska Real Estate Commission first to determine whether you have grounds for a complaint. If necessary, you'll need to find a local lawyer specializing in real estate issues to get a settlement for this chimney issue, either from your real estate agent or the home inspector.

  • I am assuming (hoping) that the seller sold in good faith, this then leads us back to the survey not being completed to a reasonable level. Presumably the seller, as we did, takes the survey results in good faith – Blair Dec 19 '17 at 18:15
  • @blair, it is possible that the inspector did not do a good job, but as my edited answer above notes, the inspection contract usually limits their liability unless the inspector was grossly negligent. – JW8 Dec 19 '17 at 18:46
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    The chimney sweep was certainly of the opinion that even a cursory inspection would have brought the issue to light, I suppose it will come down to opinions – Blair Dec 19 '17 at 19:03
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    @JW8, I was going to answer but you covered the same ground and in more detail. Given the chimney sweep's statement, the seller/realtor should have known and by law you have a case. However, I don't know the disposition of the judges up there. In California, where i live, it would likely be an open and shut case. In Nebraska, I have no idea. Call the numbers that JW8 gave you and see if they think that you have a case that will stick. – ShadoCat Dec 20 '17 at 0:28
  • @Blair, agree with ShadoCat that you should have a good case if the chimney sweep is willing to attest to his findings in writing. But since I don't know the specifics of Nebraska law, the real estate commission is your best bet to start finding a way to be made whole. – JW8 Dec 21 '17 at 6:21

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