What *should* have the seller have told us about the water well situation?
March 27, 2010 6:17 PM   Subscribe

What does full disclosure really mean in a real estate sale?

You are not my real estate lawyer, I get that. I just want to know what's a reasonable expectation for the home purchase we made.

If it matters, locale is BC Canada.

When we bought this place (house on 5 rural acres), we thought we had an idea, but didn't know for sure, where the property line was. Therefore, I assumed that the shallow well 10 feet from the house was where we got our water. I was wrong...that was the original well on the property, but it was too shallow so it ran out of water in late summer and they dug another shallow well on the far side of the property.....on what I originally thought was neighbours property (and therefore neighbours well).

I was wrong...our water is coming from the well hundreds of feet from the house. During the year we've been here, I've properly capped, shock-chlorinated, and maintained the well near the house as if our water was coming from it. My assumption and efforts would be funny if it wasn't so serious. Basically, I've looked at the distant well a few times (I was curious) and thought to myself "yuck...glad we're not using THAT yellow/rusty water!".

In fact, when we bought this place, we had the water tested and well inspected, the inspector made the same assumption I did, and tested the well that isn't even being used!

So, my question is...was it the seller's responsibility to ensure that we (and even more so, the inspector) knew which well was being used? Is this a case of caveat emptor?

One more piece of data...during the sale, the sellers were required to fill out a "Property Disclosure Statement Residential" to which they replied to the following questions:


Section 1 (General), Question C and C(1)
C. Is the property serviced by a private well? (Checkmark was placed in the Yes column)
(i) If yes, are you aware of any problems with the private well? (Checkmark was placed in the No column)


No mention was made of the second well there or in an available "additional comments" section.
posted by swimming naked when the tide goes out to Law & Government (7 answers total) 1 user marked this as a favorite
 
First, I suspect that the vendors disclosed what they had to, and your confusion about the wells was, however unfortunate, not a misrepresentation.

Furthermore, you haven't actually suffered any damages as far as we know, so even if you had a material misrepresentation, what kind of results would you expect from pursuing this?

You could ask an expert what might happen to your "new" well having suffered a year of neglect, but as someone who has lived off a poorly maintained well for their entire childhood I suspect you're probably good to go.
posted by Pomo at 6:45 PM on March 27, 2010


I'm in the midst of selling and I would've made sure that kind of thing was obvious to a buyer. But, if the distant well is still on the property and produces acceptable water, then they've answered correctly. Are you experiencing the "yellow/rusty water" from your plumbing at the kitchen sink? I'm also a bit concerned that you've got such a shallow well so close to the house, that wouldn't be allowed where I live in North Carolina.
posted by pappy at 6:58 PM on March 27, 2010


I am absolutely unqualified to discuss real estate disclosure in Canada.

That being said:
It appears no misrepresentation was made. They disclosed the private well. They claimed they had no problems with the well, of which you have no evidence to the contrary. Any claim you make that the well was not properly maintained is defeated by the last year. And lack of maintenance is not a "problem", in itself.

Your inspector may or may not have been negligent in testing the incorrect well, but even there I think you won't have much recourse. He was told to test the well, did so, and provided results for that well.

I would contact the inspector, discuss your displeasure with the testing of the incorrect well. Approach it calmly but seriously, and in reality I think you could get a free testing of the correct well to determine what steps you should take next.
posted by shinynewnick at 7:04 PM on March 27, 2010


The general investigation made by the buyer of a property is called "due diligence." It is called this because a reasonable person is expected to be diligent in his inspection of the property and to ask the questions that are appropriate to understand the property. A good question might be, "Can you show us the well that serves this property?" Another, of course, would be, "Please show us where the property lines are." You get the idea. You may have not been a sophisticated buyer, but you should not expect the seller to volunteer information you do not specifically ask for. In answer to the disclosure questions, the seller appears to have provided all of the information he was required to. I have purchased many properties and have never relied upon the seller to volunteer information that I have not asked for. You should not either.
posted by Old Geezer at 8:13 PM on March 27, 2010


When we bought this place (house on 5 rural acres), we thought we had an idea, but didn't know for sure, where the property line was.

A land survey will mark your property lines for you. This is for your protection, if a neighbor erects a fence "close to the property line" but is actually 20 to 30 feet onto your property, you would never know. There are laws in the US that allows a person to appropriate property if their structure is build on it for a set number of years. Canada may have similar laws.
posted by JujuB at 8:33 PM on March 27, 2010


Response by poster: Thanks all...to be clear, I'm not looking for reparations, nor intend any sort of legal action.

I'm disappointed, definitely, in the way this was handled. That's both on my part and the part of the seller. I can only claim ignorance as a first time buyer as a defense. That also goes to the considerable (!!!) amount that I think I overpaid for this place, now that I've found out what the previous owner paid...though market fluctuations can be blamed for much of that.

I'm just....sad. I've wasted a fair bit of money and a fair bit of time. I also do know that the bank made the well inspection a requirement of the sale and since the well inspector looked at the wrong one, I do wonder at the legalities involved there. I also dread the extra effort I'm going to have to undertake to clean up the "real" well.

I can tell you that I'm going to be a hell of a lot better about the next house I buy, if/when that happens. I wish that buying a home for the first time came with someone to hand-hold and really show what traps a buyer can fall in.
posted by swimming naked when the tide goes out at 8:48 PM on March 27, 2010


Well, not that this helps now, but you can always hire a lawyer to help you buy a piece of property, instead of using a realtor. Or use a buyer's agent realtor who doesn't do anything else. If they're good, they should be able to catch a lot of this stuff (although they won't be held to the same professional standard of conduct that a lawyer would be, and therefore, if they screw up, it might be harder to sue them and get your money back).

I'm not a real estate lawyer and I don't practice in Canada, but from my vague law school recollection about American contract cases involving real estate (Canada might be similar, don't know), the general rule was the seller isn't responsible for defects unless they knew you were misinformed and relying on that information, or unless they actively concealed a defect that a reasonable person would want to know about (like a basement that floods, or termites). And by actively concealed, I mean that they boarded up all the dry rot from the flooding, or painted over the rotten, termite infested lumber. This is not legal advice and don't take it as such.
posted by Happydaz at 9:50 PM on March 27, 2010


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