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Legal counsel needed over roof leak issue

By ERIC FEICHTHALER - Real Estate Law | Sep 10, 2020

Dear Mr. Feichthaler:

I recently purchased a home with an as-is contract and hired a home inspector, who said everything was fine except a minor electrical matter. Well, a month later I start seeing a leak dripping in the corner of my kitchen. I go up to the attic and there is serious water damage on the wood, and it looks like someone tried to cover it up temporarily by placing a metal tray. I told the inspector and they offered to return the cost of the inspection, $350. The damage is likely 10 times that! Is there anything I can do?

— Henry P.

Dear Henry:

Roof and water damage can be a serious issue, and a top objective of any inspector should be to determine the roof is in good condition. As with nearly any issue, the first step is to review your agreement with the inspector. Many inspectors will specifically state in the agreement that their liability is limited to the costs of inspection, known as an “exculpatory clause.” As you mentioned, your damages are well in excess of that amount. Even if such a clause exists in your agreement, you may not be out of luck.

Case law in Florida on the enforceability of these clauses is mixed. The inspector could still be sued for breach of contract if they simply didn’t provide the service they promised. If the agreement stated that the inspector would physically inspect the attic, then didn’t, they could have breached the contract, or have been negligent in doing so.

The other avenue to consider is an action against the previous owner. From what you described, they may have taken active steps to conceal this leak to you as a prospective purchaser. Even though you used an “as-is” contract, which typically means you accept the property with all defects, they have to be obvious to a buyer. If they were hidden, and were known to the owner, the “as-is” contract may not protect the previous owner.

Depending on the level of cost of the repair, and the wording of the agreement, it may make economic sense to consult with and engage an attorney to represent you. In the meantime, you could advise the inspector and/or the prior owner that you are seeking legal counsel, and that they need to make their offer much higher to compensate you for their negligence/intentional concealment of this defect.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or 239-542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.