I don't know an attorney in Dallas, sorry.

The seller has a duty to disclose things, but no duty to repair them, that is what negotiations are for. If you have a realtor he/she should be helping you with this. At this point, you may have lots of options, but you need to navigate them carefully, which is why you need an attorney. In some ways, it would have been better to discover this after closing, assuming you still want the house. But since you discovered it before closing, there are questions that you must have answered. Does the inspector carry insurance against his errors? Many inspectors do.

I do have a realtor but the answer from his side is that the seller did not notice it before, so he is not responsible for the disclosure and repair. I do not know whether it is true or not . If if I choose to cancel the purchase, I will lose earnest money and other payments for loan application, is it correct?

to the inspector, I searched Trec, looks the liability insurance is a must to be a inspector in Texas. So it is a good news to us? Thanks again for your help!

Your agent is correct. The seller has no obligation to repair. Proving that the seller knew of the problem in order for him to be required to disclose, is a losing argument for you.

We do not know what your contract says in regards to the deposit, so there is no way for anyone here to know what would happen with the deposit if you cancel. Yes, you will be out of any fees to the lender.

Negotiate like heck for the seller to make the repairs, purchase the home As - Is, or terminate the contract.

Since you don't have a lawyer to go through such an important purchase with you, it makes me wonder if you are a first time home buyer. It seems you are doing a lot of work that should be done by the seller and your realtor. Also you are spending energy on things you may not need such as finding out if you could sue the inspector.

Using excuse 'the seller did not notice the chimney is tilted' does not fly as now at least you noticed it. The seller now have to prove to you that the chimney has NO problem instead of you to prove it does.

You have to decide if you want the sale to go through if the chimney has problem instead of trying to find out how to fix it as if you are the homeowner. It is seller's problem.

Read your contract carefully, find a lawyer...in general, I believe there is always an OUT if one really wants to cancel the sale due to problem found in inspection. Hopefully you do not have a bad contract that gives you no protection.

Do you need a mortgage for this purchase? Could this issue be one of the conditions required for the loan?

Do not close the sale unless all your concerns are resolved.

Using excuse 'the seller did not notice the chimney is tilted' does not fly as now at least you noticed it. The seller now have to prove to you that the chimney has NO problem instead of you to prove it does. -

This is not correct, all home sales are "as is," that is the entire reason you put an inspection contingency in a contract. If sellers had to warranty the condition of a home then why bother with an inspection contingency, since they would have to fix anything wrong anyway. Sellers are under no legal obligation to fix or prove the condition of the home. They do have a legal obligation to disclose any known defect, but the only way to prove they knew is a past repair. At this point, even if you prove they knew and didn't disclose I am not sure you can force them to repair. This would be true if you discovered the defect after buying but right now you have a reason to breach the contract not necessarily to force the repair.

You have to decide if you want the sale to go through if the chimney has problem instead of trying to find out how to fix it as if you are the homeowner. It is seller's problem. -

Again, it is not the seller's problem. Since this was discovered on the final walk-through you are obviously out of the inspection period and once you are out of the inspection period the seller gets to decide whether or not you can cancel the contract. You have no legal means to cancel the contract unless you can prove that the seller knew about the defect and didn't disclose it. Even then doing so without the advice of an attorney would be crazy.

Read your contract carefully, find a lawyer...in general, I believe there is always an OUT if one really wants to cancel the sale due to problem found in inspection. Hopefully you do not have a bad contract that gives you no protection. -

While you might get the seller to allow you to buy out of the contract, the seller would be stupid to allow it. I believe (not sure on this one) that since the defect has been detected, if the deal falls through, the seller must now disclose the defect. Again, I am not 100% sure about defects found after the disclosure was filled out but a realtor will know. Essentially, the seller has you over a barrel and he would be silly to let you get out of it because of an oversight on your part.

Do not close the sale unless all your concerns are resolved. -

Again, talk to an attorney. At this point you are causing the delay, and you are technically in breach of the contract, the seller can seek damages from you (in many states the damages are already prescribed by law and the seller can simply file a few pieces of paper and get a summary judgement against you). There are typically delays allowed for financing but discretionary delays are not allowed. Don't run and close but do realize, that at this point time is of the essence, so do not add any unnecessary delays.

Edit - @azmom - I apologize for disagreeing with your post in such a forceful (rude) way, I just don't want the OP to be confused. From reading your post, I think you misunderstood that they were still in the inspection period and therefore had more options.

Thanks so much for your information! Yes, we are the first time home buyer and lack experience. We do have a mortage for this purchase. But I do not think it will be a condition for the loan as our loan actually almost completed before we noticed this chimney issue. So we extended the closing date. The seller said it is our fault as after inspection, we did not point out the chimney issue. It was long time after the option period.

First, a disclaimer, I did go to law school but I have never practiced law in any state nor have I ever been licensed to do so.

This is going to be a long post to try to help you, but it doesn't change my advice find an attorney on Monday.

You currently have several different issues simultaneously hitting you that may feel like one big issue, they are not. They are different. It never hurts to negotiate with the seller to attempt to resolve the issue but realize you are on shaky ground so stay away from ultimatums.

The problem - You found a defect, noticeable enough that you detected it upon a thorough final inspection, that the inspector should have detected but didn't.

Question 1 - Did the seller know about the defect and fail to disclose it, typically tilting masonry chimneys will cause water damage issues, has there been a repair? If there has been any repair you have a legal defect in the disclosure statement from the sellers and can pursue them and the inspector. If there was no repair or no act to cover up the problem then proving they knew is a lost cause.

Question 2 - Should the inspector have found this problem in his inspection? Since you, a non-expert, detected the problem in a final walk-through it seems very likely that the inspector should have detected it. Since it should have been found during the inspection, it will likely ignore any exculpatory clauses and be negligence (even if it doesn't ignore the exculpatory clause there are several easy ways around it). But you may need a written statement from another inspector.

Complicating issue - The recovery from either party will be limited to avoidable damages. I really don't know the law in Texas about real estate breaches. Some states will limit retaliation for certain types of breaches to loss of earnest money. If this is the case then your suit against the inspector may be limited to that amount (this doesn't mean you have to breach and surrender earnest money, only that it becomes the maximum amount you can recover).

Additional but separate issues - You have two contracts in addition to the problems - the first one is with the seller and is a big one. Finding this issue doesn't change the fact that you agreed to buy a house after satisfying an inspection period, which has passed. The other contract is with the inspector and is fairly minor. Withholding payment from either one might cause you problems. So don't assume.

In the end, it is a tough situation. Your best bet is to keep communicating with your realtor, and to see an attorney. There are probably steps you need to take now to protect your standing, they don't necessarily change buying the house, but just protect from whom and how you can recover.

Really really appreciate your inputs and suggestions bry911!!!

I have 20% down payment. I told my loan agent about the chimney issue and told them we need to postpone the close date. I do not they really know the chimney issue or not. I am a little bit confused about why the bank do not want to make a loan with us if they know about it. And what do you mean "If not, are you released from the requirement to purchase?"? Thank you!

Thank you to make up number to make me understand it! But my case is 405,000, so the repair fee (let us say 10,000) will be too minus to it, do not you think so? It is a little bit difficult for me to answer your first question, if things goes not too far away, I still want to make this purchase. Thanks again!

Yes, the seller and agent will now have to disclose it to the next buyer, if this sale fails. This is probably your best leverage to use against them... fix it now or fix it for the next buyer sort of thing. But, how can you enforce the new disclosure, in order for this to be truly a leverage point? It is difficult to do. I would speak with the sellers agent and let her know in no uncertain terms, that you will follow through with this. An agent has a legal duty to not take on a client if the client refuses to disclose a defect that the agent and or seller currently know about.

Yes, this is what my agent told them. It will be a lose-lose case if the transaction is stopped. But I will be in a even worse condition if the seller easy to got $4300 earnest money.

Bry,I don’t necessary think you were rude, the way you reacted was your usual style, at times you could be ahead of yourself, then you self corrected yourself in subsequent postings.....I understand and won’t take it personally.

zzldyk,

The 'condition' I stated is a mortgage jargon, not sure if it is a universal term used by every state. When applying for a mortgage there are a list of 'conditions' to meet before underwrite to release the fund. The underwriter could change loan status before it is formally released based on any new information received. For example, a borrower thought his loan was set and went out to purchase a new vehicle with car loan, it could change his income debt ratio and disqualifies him to get the mortgage.

I hope some mortgage experts would enlighten us if the issue of the chimney would cause problem in getting the mortgage.

If I am zzldyk, as soon as I noticed the chimney has issue, I would call the realtor to ask the seller to prove the chimney has NO problem. I won't go out to get repairing quote, as I would have to find out if the problem is serious enough for me to cancel the contract. Getting repair quote and considering to sue inspector are something I won't spend time and energy on at this point.

"The seller said it is our fault as after inspection, we did not point out the chimney issue. It was long time after the option period."...

Are you saying the seller who lives in the house for all of these years claiming that he did not notice the chimney problem and now he turns around to accuse you, a buyer who does not know the house at all, not be able to spot the tilted chimney right away?.

As an inexperienced new home buyer, sounds to me you do not have a competent buyer's agent to work for you. I am glad you bring the question to this forum so at least you get some ideas. Hopefully you would get a good lawyer to protect you.

Azmom, the seller has NO obligation to prove that the chimney has no problem. First, the contract is way out of the due diligence period... the period of time the seller and buyer agreed that the buyer had to determine if he wants to move forward by removing all contingencies.

NC, Thank you for the info, it is helpful.

Say if new issue was found after due diligence period passed, will it cause negative impact of getting the mortgage?

You are a very experienced and competent realtor, If you are zzld's agent, how will you handle this situation?

At times you could be ahead of yourself, then you self corrected yourself in subsequent postings - I assure you my posts have been consistent this whole time, and correct too.

Azmom - This time I am going to be a bit rude...You can call your realtor and have him ask the seller to prove anything you want. But after the due diligence or inspection period there is no legal reason the buyer shouldn't just tell you to piss off, and when he does you still have to buy the house. You are handing out real legal advice, that can have serious financial ramifications, please keep that in mind.

Now for the financing contingency...With such a small amount it may be hard and risky to try to kill the financing. There are lots of ins and outs to financing contingencies that need a local attorney or realtor. For example, a closing extension doesn't automatically extend the financing contingency and since the buyer has extended their close they may be out of the financing contingency. Another cause for concern is financing contingencies don't usually cover you not having enough cash down. So even with the contingency if the bank only wants more money down, the buyer may argue against the return of earnest money. Also there is the issue that the bank will disclose why they killed the loan and you have to be very sure they are not going to say, "because the buyer had concerns." While they have the right to kill their contract with you, you can't act in a manner contrary to your contract with the buyer, including telling your mortgage broker you have concerns.

zzldyk, I hope we helped but please talk to your realtor, and then hopefully to an attorney. In fact, many real estate firms will have an attorney who may be able to help you a bit and then put you in touch with someone who can help you more.

Did the seller say the chimney is not tilted or he did not know it was tilted OR did he say it has not been a problem? You are saying it is visible, if it is visible, you are suppose to take that into consideration when you place your bid or make sure you find out if what you notice is a problem/potential problem.

Thanks so so much for all of your warm hearted inputs which do helped me lot, especially Bry, Azmom and NC, thank you guys!!!

To deke, answer your question: the seller claimed he did not know it tilted at all. I only went to the house three times and only noticed it at the third time for finial walk through.

Azmom, the newly discovered defect could be a problem with obtaining financing... that is really a question only they can answer. But, if it does stop the buyer from obtaining financing, the buyer will still lose the deposit because he is past the financing contingency date. I am assuming this only because he said he found the defect during the final walk through.

I personally think the OP is on the right track. Since Texas law requires the inspector carry insurance, the inspector will only be out his deductible, which is probably a couple of thousand. With proper planning and advice the OP might be able to collect a small rebate from the seller which could be used to cover attorney expenses, the deductible from the inspector, and the remainder from the insurance.

Let me add some additional advice, the most important thing is to keep communication lines open between your realtor, your attorney, you, and the seller. Assure the seller that you still want the house but need a bit of extra time to work through this problem, don't let them get defensive. You will be better served if the seller believes they are on your team.

Thanks , Bry!!! It is a very good suggestion! I can guess what you are talking about it.But could I ask what is "OP"?

zzldyk,

OP Bry referred is you, the Original Poster.

bry,

I did not provide legal advice, I know better. May be because of my professional background, I am quite deliberate and conservative with subjects like this.

None of us, including yourself, knows details of the transaction, the content of the contract, the house, and the background, facts around the chimney issue. None of us should provide legal advice only based on what the OP shared in a forum. It is why I suggested OP to find a lawyer.

What I shared with zzldyk is about taking different approaches, especially if it is my purchase. Yes, some approaches may look wrong by itself based on the small amount information we know now, but are they really wrong? Even if they are wrong, none of us would know the exact outcome from this deal. May be a desired result could be achieved by the so called wrong approaches.

I have no desire to discuss the validity of my inputs based on your perception. To me that train has long left the station.

NC,

Thank you again for the inputs.

In the early 2000s, I was heavily involved in friends' mortgage business. The inter-connection among mortgage, real estate transaction and appraisal is fun to learn. The pace of changes and uniqueness to local are intriguing to say the least.

OP, :-)

I hope the information here does not scare you, or give you false impression. Based on my experience, the system is fair if you find competent professionals to help you.

Please keep us posted with the progress. Ask any question you may have since there are many experienced, knowledgable folks on this forum. Best luck to you!

I am so so appreciated your guys' help!! I definitely will update it! I have an additional question: I only called the inspector the day after the final walk through and asked him about the tilted chimney, he even lied to me that it is not a problem as it is a more than 20 years old house. Do you think it is proper time to write him an email to inform him the whole thing? Thanks!

I did not provide legal advice, I know better. May be because of my professional background, I am quite deliberate and conservative with subjects like this.

So it wasn't you that said - "Using excuse 'the seller did not notice the chimney is tilted' does not fly as now at least you noticed it. The seller now have to prove to you that the chimney has NO problem instead of you to prove it does."

and..."You have to decide if you want the sale to go through if the chimney has problem instead of trying to find out how to fix it as if you are the homeowner. It is seller's problem."

and..."Do not close the sale unless all your concerns are resolved."

That is legal advice! A formal opinion regarding the substance or procedure of the law in relation to a particular factual situation. The whole idea that you need to see the contract before offering legal advice must have slipped your mind on that one. But don't worry there is enough case law and real estate contracts are standard enough that your commenting on that without reading the contract would have probably been fine if you had been right.

None of us, including yourself, knows details of the transaction, the content of the contract, the house, and the background, facts around the chimney issue. None of us should provide legal advice only based on what the OP shared in a forum. It is why I suggested OP to find a lawyer.

I have not given any contract advice, nothing I have said would in any way require me to see the contract, the house, the background or the facts...Contracts don't exist in a void, they exist within the law. I have several times offered explanations of the law in this thread but NEVER have I given a legal opinion...I explained that you can't disclaimer negligence in a contract, so any clause in any contract that limits responsibility for problems (exculpatory clauses) will not extend to negligence, I also explained that in negligence cases the damage will usually be limited to the unavoidable damages, since the OP noticed the damage before the sale the OP may need to investigate breach (for full disclosure, I don't think the OP really does but that is obviously what the other side will argue as a limit to their liability and so needs to have an attorney step in.), furthermore I noted some law about real estate transactions.

P.S. Twice now you thanked Ncrealestateguy for saying the exact same thing I did. Where is my thanks? Not that he did anything wrong, his input was incredibly valuable, but seriously do you think your soul would catch on fire if you said, "thanks guys." It is OK, I actually prefer when people ignore me for being right.

Just for future reference

A legal opinion, or legal advice, means listening to facts, either whole or in part, and proposing a resolution when either the opinion or problem is based on the law or the practiced application of it.

Stating what the laws are or how they are practiced is not legal advise. Telling someone - "the law says X" is not the same thing as telling them what they should do. You should still be careful about doing it because, in my opinion, it can be just as dangerous. Also telling someone to seek a professional opinion is not legal advice, but admission of inability to give legal advice.

I do do appreciate all the advise your guys gave to me, you are all so warm- hearted to help me, a stranger!!! Thanksssss!!!!

I just got a good news that the seller want to pay us $4000 for the repair although they will eat back the "$500" promise of the minor destroy we found in the final walk through. Whatever, it will cover most of the repair if we only do the upper part of the chimney. In this situation, do you guys have any suggestions for what I should do？thanks again! I do appreciate all the valuable inputs!!!

I found Gardenweb today in a search for mortgage advice, and I found bry911. I was amazed at how thorough his advice always seems to be. I was also amazed at the reception it gets.

I think it has to do with who he is talking to. I figured out he was an instructor on the other thread but it is pretty obvious. He turns a simple question into a broader lesson. While most people here talk to each other bry911 seems to address the readers. This creates a different tone and seems to make people uncomfortable. I think some of that goes away when you understand what he is doing.

Are you doing a cut and paste of these comments on every thread the guy has posted to? He admits to enjoying being a troll, and every once in a while sounds reasonable.

He admits to enjoying being a troll, and every once in a while sounds reasonable. -

Can you link the thread where I have admitted this. I can only assume I was attempting sarcasm that didn't work. I am not a troll, I don't want people to argue with me. I might well be a contrarian and a curmudgeon and I might be down right rude and mean but I assure you that I am not a troll. If you were to say that, "bry911 has a god complex," I would even accept that as being closer to the truth but the fact of the matter is I would far prefer that you canonize me and everything I say rather than argue with me. If you guys would just understand that I am never wrong we can expedite many of these discussions.

I am joking but in that same vein - since you said "once in a while sounds reasonable." - do me a favor and find the threads where my advice or knowledge was unreasonable. There are a couple where I miscalculated or misunderstood either the question or referenced materials. But they are far less than your implication.

Looks no one noticed about my update, in this stiuation, do you think it is still necessary to find a lawyer to deal with the inspector ? Thanks!!!

Yes I think it is still necessary. Certainly, the seller is stepping up to help but $5,000 home problems have a way of becoming $10,000 bills. I wouldn't spend a lot on an attorney no more than a couple hundred if it were me. But it is a small price to pay for protection.

Are (B)aba O'(R)eill(y) and bry911 one and the same person? Funny coincidence.

zzldyk: The fact that the seller is willing to credit you $4K is wonderful news. That seems very fair to me even if they don't give you an additional $500 for the minor repairs. Some of these repairs you might be able to do yourself anyway. If you really love the house, then this is a very good solution for all.

You caught me - they actually wrote the song about me! I really don't see the coincidence, I have three letters in my screen name that happen to be in a song... But I will give you credit, most people here assume my name is Bryan, when in fact, it isn't. I am pretty sure some of the people here have commented on my youtube page so they know.

Edit: Just to be clear - I am not Baba O'Riley - I am really not a Who fan but I did see them in Cincinnati once, not the '79 disaster concert. I am much more of a NOFX type music fan. I would absolutely change my screen name to The War on Errorism if it wouldn't cause me more problems.

I read carefully about the contract and do find that the inspector's maximum loss is the amount of inspection fee. So it is meaningless to contact a lawyer, right ?

It is really unfair contract but I assumed most of us will not read it before sign it. It is really easy to be an inspector. Is it useful to send an complain to the organization of realtor, inspector? Thanks!!!

Hello zzldyk,

The lesson learned from this purchase is always find a competent real estate lawyer to go over any real estate contracts/legal documents before you sign it. Chance is if you indeed have an unfair contract, a competent lawyer would point it out.

" I assumed most of us will not read it before sign it'. Not sure about others, we ALWAYS read every single word/term before signing any legal documents as "The devil is in the details". Three times we found errors in mortgage papers (why these loan folks could not even get simple math correct is beyond us). A few more times we found errors in other legal documents. We never sign anything until we get all of our concerns/questions answered. You should do that too.

It is hard to tell if the seller's offer is fair as again, I do not have all the facts and details. You may want to get your realtor's/contract's/lawyer's help to determine it.

May be you could ask folks (realtors, mortgage folks, landlords, bankers, lawyers,...etc. )on this forum for advice of finding a competent real estate lawyer in your area? It could be a daunting task for a new home buyer.

I read carefully about the contract and do find that the inspector's maximum loss is the amount of inspection fee. So it is meaningless to contact a lawyer, right ? -

No, you are not correct. I am going to link you an article but knowing that English is not your first language, I want you to understand something before you start. The reason you need an attorney is because of the clause in the inspector's contract.

Exculpatory-Clause-in-Home-Inspection-Contract-Is-Void

It doesn't matter what he puts in his contract, he has a duty to act with a certain standard of care. If he clearly should detect something and doesn't then you may have a case. I am not familiar with Texas law but I do know that Texas has recently come down pretty hard against exculpatory clauses in general. You really need an attorney or some iron clad guaranteed repair bill.

In car circles, it is well known that certain vehicles suffer from "syndromes". Meaning all Volvos have turbocharger issues sooner or later, and exhibit similar symptoms when they do. Ask an expert Volvo mechanic about XYZ and he doesn't even need to look at the car to diagnose with 90% accuracy as to what the problem is.

Houses in developments have "builder's syndromes". Especially those that have reached 20 years of age, which is about 5 years past when many major systems give up the ghost. Most contractors in town know that Builder X always skimped on the cheapest HVAC for his houses, and that no house that he did had one last past 5 years. Or that Builder Y skimped on structural details where masonry was concerned and every one of his homes has the same syndrome.

Which is a long winded way of saying that I would bet that the contractor who said that it would be 20K to do the job correctly is probably not just blowing smoke. It does not seem that a 5K patch would be near enough to correct the underlying issues that caused the problem in the first place. Replacing just the small part that has pulled away at the top doesn't fix the inadequate foundation below, nor the inevitable moisture infiltration caused from the lean.

I would read the 20K contractors message again. He more than sounds like he knows the score here.

Thanks for all if your inputs!I post another photo which I think the brick and motor is a little bit strange at that erea. I already asked a foundation company to do a measure and he did not find any problem. So do you think I need to find a structural engineer? Thanks!

Even if you have a case (which I find iffy) NO LAWYER IS GONNA TAKE IT!

You are moaning about $5000 to fix the chimney.

Suing will cost $25000 -100,0000 --- and all you would get is the $5000 at most. (And maybe not that as you could have backed out of the contract so all you would get is a few $$$ for the delay in closing if the seller is paying to fix it.)

You do NOT get attorney fees on something like that. You are not gonna get 'pain and suffering'.

I would never have taken you as a client --- unless you handed me a $100,000 retainer (expert witnesses, depositions all cost a lot) and singed acknowledging that you were going to spend more - a lot more - on attorney fees than you would ever collect to fix the fricking chimney or walk away from the house

Ann, are you a lawyer? Are you just friendly to remind me to give it up? If I want the house( actually, if I knew it at the inspection, I definitely will not go further, but now I face a difficult choice), I just accept the $4000 from the seller and pay extra from my pocket? If I do not want the house, just forgot the earnest money and other expense?

In your opinion, it is meaningless to bother the inspector as no lawyer will take the case and all I can get from him is $400 inspection fee?

I really appreciate your professional advise!!

Maybe, I should be more clear, you are not suing, nor should you be interested in suing over $1,000. You want to protect your right to sue for $20,000. Ann is not correct, hundreds of attorneys will likely take this case for around $1,000. It will never end up in court, his insurance company will do the math and settle it.

Thank you, bry911, you are always so helpful!!!

zzidyk...I see from another thread that Ann says she is/was? a lawyer

Before you do anything, you need to decide of you are going through with the sale.

Also, the $4000 credit will not be given to you as cash at the end of the closing. It will be subtracted from the sales price.

Ann's advice is just plain incorrect. it will not cost anywhere near $100,000 to hire an attorney. I don't know where that number came from.

ncrealestateguy....Washington DC lawyer fees are possibly much higher than what our areas are.

Bry, NC,

Thank you for the quick response and insights.

Ann,

Folks on this thread suggested OP to hire a lawyer, so that he would receive legal assistance to better understand and handle his situation.

I don't recall anyone advised him to file law suit over this transaction/Chimney issue.

Bry and NC's are well respected on this forum as we are familiar with their background and expertise.

Since you are new to the forum, may we ask are you a real estate lawyer? Which city/cities, state(s) do you practice?

Thank you.

Since you are new to the forum, may we ask are you a real estate lawyer? Which city/cities, state(s) do you practice?

Google is your friend :)

Please tell me what you would be intending to recover from a lawsuit? The sellers have already made a generous offer that would allow you for the most part to fix the problem. You will get the chimney fixed - not restored to perfection which will never happen regardless of whether you saw the problem immediately or not. When you buy a "used" house you cannot expect to buy perfection. There will be other things wrong with the house that you will have to fix - that's just the way it is. Sometimes first time home buyers don't realize that.