Some situations are confusing!
I was asked by a reader to elaborate on a personal situation that exists in the purchase of a home. This is what she wrote; “Hi! I was wondering about a situation that I have going on with the company that sold us our home. I am having a hard time buying insurance because my roof has not been replaced in 26 1/2 years. And this was not disclosed at the time of closing. Can you give me some advice?” As you can see she gave me very few facts to work with but I will write this as a response to her.
I appreciate the fact that you valued our opinion enough to write in seeking a response. First I must disclose that I am not an attorney and do not give legal advice, other than advising you to seek legal counsel from a qualified attorney. I will however, share some Alabama laws and real estate practices that can affect a buyer or seller of real estate in Alabama.
In regards to the age of your roof.
Since you didn’t say, I am assuming that the roof covering is asphalt shingles. I understand that when you go to purchase shingles from a building supply store, they tell you this one is a 30 year shingle and that one is a 40 year shingle. That is they are supposed to last that long. However, they didn’t tell you that the life span of a shingle is under perfect conditions. A truer expectation is that a roof will need replacing between 12-15 years. Should your home have ridge-vents, attic fans, or some means of removing the heat collected in the attic, the life of the shingle may be extended. Under these situations and provided the shingles are exposed to sufficient sun, a 20 year life is not unreasonable. It is commonly known to begin regular inspections on an asphalt roof between 12-15 years of age because it will need replacing soon. Since your roof is 26.5 years old, I would be very surprised if it doesn’t leak badly.
You didn’t mention how long you have owned the house, but from what you said I assume you recently purchased it. I also assume that you paid cash for the house because if you had it financed, the lender would have required proof of insurance prior to closing. I can understand why the insurance company doesn’t want to insure the house until it has a new roof; that roof is going to leak, which could cause severe damage to the support system of the structure. Somebody is going to put a new roof on the house or it will eventually cave in. I realize replacing the roof could be somewhat expensive to you, but the consequences of not replacing the roof will cost you many times greater than the roof cost. Once the roof is replaced, insurance will become must easier to purchase.
Additionally, you stated you had a situation with the company that sold you the home. Here to I am assuming that you are seeking some type restitution from the brokerage firm you used when you purchased the house. Reality can be very gray in this area because I don’t know what type of agency relationship you had with the agent you worked with. I can tell you that Alabama law is very plainly stated.
Alabama is a Caveat Emptor state which places full responsibility….
upon the buyer to perform their due diligence in inspecting every aspect of real estate prior to closing on the property. This law has been in existence for years and years, and the vast majority of Alabamians doesn’t understand the implications of the law until they lose a court case through the Judicial System. Had you done your due diligence before buying your home, you would have had a home inspection performed that would have told you the roof needed replacing. May be you had an inspection, I don’t know because you didn’t say so. You might not have known to have a home inspection done, and probably wouldn’t have unless a real estate agent told you that you should.
Was your agent at fault?
I can’t definitively answer that question either because there are so many variables involved. If you purchased the house afterOct.1, 1996, the agent you used should have disclosed to you the importance of being represented by a licensed agent when buying real estate in Alabama; and they should have explained the agency relationships they could provide you. If you understood the need to be represented in the buying process, and wanted that agent to represent you, you probably signed a “Buyers Agency Agreement,” with that particular firm. If in fact that was the case, the agent had a fiduciary responsibility to disclose all known defects, and should have explained the need to have all the proper inspections done because of the consequences of Caveat Emptor. However, in many cases, a buyer doesn’t want to commit working with only one agent, or they don’t want to sign a contractual agreement with anyone they don’t know that well. If this happens, the agent is assisting the buyer and has no fiduciary duties to the buyer. This means the agent does not represent you. They are not legally considered your agent. The agent is not an advocate for your best financial interests and are restricted by law to only assist you with the transaction. The term for this type relationship is called a “Transaction Broker” and they are not permitted to advise you in any capacity.
Can you collect restitution from the seller?
By now you’re getting tired of hearing me say I can’t answer that but I can’t answer this one for sure either. There are so many unknowns to deal with. Was the roof leaking at the time of purchase? Did the seller complete a “Seller’s Disclosure” form and provide you a copy of it? If so, did you rely on the information they provided on the form? Was there any mention of the roof leaking? Was the age of the roof mentioned at any time? These issues are all preempted by Caveat Emptor. In Alabama, it’s the buyer’s responsibility to inspect everything prior to closing. If you didn’t inspect the roof, you can only blame yourself. Your agent should have instructed you to do a final “walk-through” the day of closing to make sure everything was in working order and acceptable to you prior to closing the transaction. If you didn’t do the final walk-through, shame on you. You accepted the house as it is. Unless there was some hidden structural defect that a licensed inspector couldn’t see, you stand very little chance of receiving any type restitution from the seller.
What are your legal options?
Once again I am not an attorney. You need to see an attorney for legal advice but I would be very careful about initiating any type suit. Why? The only people that win in the vast majority of law suits are the attorney. In most cases it is a no-win situation for both the buyer and the seller because both will have to employ an attorney. Is it possible that the agent and/or brokerage firm were negligent of disclosing pertinent information that caused you damage? Sure! That can happen in any situation because we’re all human and make mistakes. Is it possible to receive some restitution from the agent/brokerage firm? More than likely not because the forms most real estate companies use are drawn up by an attorney. Most purchase agreements include phrases that hold the agent and/or broker harmless. Having said that, the liability on the agent’s part is contingent upon the type agency relationship they have with the consumer.
What is the best possible option to solve the issue?
I wish I could give you some good advice but I don’t have the legal authority to do so either. For whatever good it is, my advice is to have a new roof put on your home before further damage takes place. Not knowing the size of your home I can only guess that the cost would be in the neighborhood of $3,000 to $7,000. That amount of money is so insignificant to the cost of repairing the structure beneath the roof that will become damaged if the roof is not replaced.
My apology to you…
I am so sorry you have experienced these frustrations in the buying process. Unfortunately we learn more from the mistakes we make than we learn in preventative measures. My suggestion to anyone contemplating buying a home is to make sure that you are represented by a professionally licensed Realtor. Answer all their questions honestly, and heap all the responsibility on their shoulders. They truly can help you save money and rest in peace. However, when hiring an agent to represent you, interview them just like you would if you were going to put them on salary. Make sure they know what they’re talking about.
Do you have issues?
Should you have specific questions concerning various issues, please let me know and I’ll research the answer for you. I also want to encourage you to subscribe to our “News & Updates” weekly report so you can stay abreast of issues that might affect you when buying or selling real estate. If you haven’t visited my website, please go to www.AlabamaRealEstateInstitute.com and view previous articles.