Cracks in basement block walls

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On Wed, 30 Jan 2008 00:23:04 GMT, snipped-for-privacy@att.net (Una) wrote:

OP has no Contract with his "agent".
Oren --
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On Jan 29, 7:23 pm, snipped-for-privacy@att.net (Una) wrote:

Let's see. I'm the buy side agent and the asking price is $200K. That means my agency gets $6K and I personally may get $2500. Now, what's in my best interest? To screw around getting $200K instead of $190K? Let's see, that works out to a whopping difference of $125 in my pocket. Big deal. In reality, the real motivation is to get the deal done quickly. Same thing on the sell side. You think the selling agent wants to screw around and lose a deal over an insignificant change in their commission because the house sells for $190K instead of $200K?
As I said, unless you're paying your agent by the hour, a similar conflict of interest is there regardless of who pays the agent. And in my experience, as follows is how it works when someone uses a buyer's agent. A buyer who wants to use a buyers agent signs an agreement with that agent that spells out the agents fiduciary responsibility to the buyer. They are there to represent the interests of the buyer, not seller. It also spells out that they may be compensated by the seller, which is what normally happens. On a listed property, they wind up splitting the 6% commission, 3% to selling agency, 3% to buying agency, part of that in turn to individual broker. Now, is that system perfect? No, but it's what's commonly done.
I'd be happy to hear exactly how you've seen buyer's agents relationships done and how they get compensated following the above example. Meaning the available house is listed by the seller with some other agent, buyer retains a buyers agent. Who pays who what?

No, it doesn't depend on what his agent told him. The Illinois law is clear that unless he has in writing otherwise, his agent does in fact have a legal, binding, fiduciary responsibility to him, not the seller.
http://www.illinoisrealtor.org/IAR/buy_sell/legal/agency2.html
Agency A legal framework that allows a person to act through a representative. Common examples include
o An attorney representing you in a business transaction
o A stock broker buying and selling investments on your behalf
o A real estate broker assisting you in buying, selling or leasing real estate
Under the Act, your real estate agent will owe you certain statutory duties that are similar to fiduciary agency duties.
Designated Agency in Illinois Real Estate Transactions An arrangement where one or more agents from a real estate brokerage company are appointed as your legal/designated agent. You will be presumed to be represented by the real estate agent you are working with unless you have a written agreement otherwise
Other associates in the brokerage firm may be designated agents for other buyers or sellers and may be the legal agent of the opposite party in your transaction
Even though your brokerage agreement will be with the real estate brokerage company, you will have a designated agent(s) to act on your behalf
Designated Agency Duties under the Act Perform according to the terms of your agency agreement. Promote your best interests as follows: o Seeking a transaction that meets the terms of your agency agreement or that is otherwise acceptable to you
o Presenting all offers to you and from you unless you direct your agent otherwise
o Disclosing material facts about the transaction that the agent actually knows about and the information is not confidential to someone else
NOTE: Material facts will typically not include information related to property that is not the subject of the transaction, that is a fact situation not related to the subject property or occurrences related to the subject property
o Accounting for all money/property received from you or for your benefit
o Obeying your lawful instructions
o Promoting your best interests above the agent's or someone else's best interests
Exercise reasonable skill and care in performing brokerage services
Keeping your confidential information confidential
Complying with the Act and other laws that might apply i.e. fair housing and civil rights statutes
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Start making notes, collect your documents and take photos now! Take more when you have the damage inspected.
Document, Document, Document. Did I say photos?
I think trying to bail out of this house now; will cause more stress on your life.
Oren --
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I got scared recently by a high end contractor. Once I calmed down, I realized the house problem I had was not that drastic. (my enclosed porch has to be redone, we can do it ourselves now tht we've calmed down and looked at it). Lesson learned: Don't panic right away.

Thats actually a great idea. Someone you can trust who's familiar enough with the industry to spot a real problem, is a good idea.

Then you probably did get a decent deal, unless the person who told you he was a 'deal breaker' was the realtor selling the house <sad grin>. We used a fellow of our own. He's a little cheaper but only because he hand writes his reports. He missed a few things, but nothing major. He was dead on for the roof for example and we took care of it within the timeframe he specified. My neighbors now are paying upwards of 35,000-50,000 dollars because they didnt follow the advice to have the plywood mostly replaced at just this age juncture. (we got away with about 5,000$ 6 years ago instead). He even warned us the main pipe to the sewer would 'probably go in 5-10 years' but not to replace it early. It went at the 7 year point and was re-run at a time when we could much better afford it than when we first got the house.

Grin, good that you are waiting. Now, if you are serious about selling, come spring you need to really do a job up nice on the yard with flowering plants and such.

Glad to help. Seriously, it may not be that bad. I have a house with settling too, but it's stable and nothing to worry about. A few minor cracks in spots but the only really 'bad' is the driveway and that is fixable. It's nothing worse than an old driveway and the freeze-thaw of the area.
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Banty wrote:

How do you figure that? If the seller knew of material problems and did not disclose them the *seller* is on the hook for repairs. It is also entirely possible that the deal may be undone; as I said, the OP needs to consult a lawyer to determine his alternatives and the efficacy thereof.
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dadiOH
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I don't know what you mean by "deal is done", then, unless you're insisting on including as part of that the possibly liability that the seller may still have as to non-disclosure. Which is kind of a broad way to define a deal.
I *said* he may be recourse to get the seller to pay for these undisclosed problems.
But my *point* is that he has closed - he's bought the house. He's now in a position that he owns the problem, one way or the other, either by himself needing to disclose, or himself needing to fix, hopefully with funds gotten by litigation from the seller if he fixes. But either way, it's his problem now.
Banty
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dadiOH says...

I understand what is being said here. For better or worse, it's my responsability now. If and when we do try to sell, we don't want to lie on the disclosure. Not just because we would have the bad luck to get sued, but also it's just plain wrong. We don't have the 20-30k that the contractor quoted for digging out the foundation but I'm not sure that it would be necessary for it to be truly fixed. This is why I will be calling a structural engineer.
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"dadiOH" wrote

Not really. Even in a disclosure state, you have some protections as a seller. My state is a mix-match there I think if I understand it right. If you do not want to be held liable, you sell as 'non-disclosure' which means you can not be held liable for anything. If you do disclose, you have limits on what you can be sued for later as based on reasonable knowledge basis.
You can for example: Disclose no knowledge of any roof problems, and not be held liable if 5 years later it turns out the roof starts to go.

Not really. If the state doesnt require disclosure, but 'allows for it if you want to' there's a huge difference.
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One limit is that you need to show the seller *knew*. Especially if they're not the original occupants of the house, that may be hard to show. For example, did the freezer that blocked the view of the shifted block come with the house when *they* bought?
I know that a lot of people don't want to do certain repairs or even bring an engineer in because it would make it easier to show something they didn't disclose. (Oh the tangled web we weave....)
Banty
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And along that line of reasoning, another major problem is that Mac had his own inspection done before the purchase. We don't know exactly what the inspection report says about the foundation, beyond that it says above average settling. As a seller, a very effective defense is going to be that the seller is not an expert in home inspection, foundation problems, etc. They will say they didn't know there were any significant foundation problems. And the buyer's own inspector, who presumably is qualified, did inspect it for the buyer. If it turns out there are major foundation problems, I would think he has a better case against the home inspector, though he certainly should sue both, if it comes to that.
But until he gets a qualifed analysis of the foundation, no one will knows for sure the extent of his problems. If it can be fixed for $5K-10K, he can get it repaired and then sue in small claims. Only if it's a lot larger than that is it going to be worth the legal expense of a regular suit.
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Good point. Although they did know enough to "try" and repair some of the cracks.
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Thats doesnt mean much. They could genuinely have thought it was cosmetic and made cosmetic repairs. You'd have to be able to 'prove' otherwise.
Case in point. I just spent 750$ on a plummer. I split pipes in the cold due to a defective pipe heater that may have been as much as 20 years old. The real reason is the roof area it lead to was totally uninsulated yet that was hidden by a solid plywood 'roof' so no one knew except the origional owner that he'd installed itt hat way. I am the 3rd owner than the 2nd one would not have known it either. Both me and the one I bought from knew there was a pipe heater and to plug it in, but neither knew there was zero insulation up there.
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Just found this on the Illinois Association of Realtors website:
"The Real Property Disclosure Report form is a series of questions intended to have the homeseller disclose any known material defects about the property. Under the Act, a material defect is defined as a condition that would have a substantial adverse effect on the value of the residential real property".
Of course I guess they could claim that they didn't know the cracks would affect the value of the house, but knowing what this man used to do for a living, I'd have to say that's improbable, (I just don't feel right posting it online).
Also:
"The seller and the seller alone is responsible for completing the disclosure form and shall be responsible for honestly disclosing only those matters of which the seller has knowledge".
He knew.
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cshenk says...

Actually, this was a one-owner home. They were here for over forty years. And since some of the cracks were poorly repaired, I find it difficult to accept they didn't know. I don't think "they didn't know" would hold up in court.
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You can check to see if the sellers have had any insurance claims for the problems you are concerned about. If this info does not match with sellers disclosure claims then you may have a good case.
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This sounds intruiging. How would one go about looking into a seller's insurance claims?
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Your attorney can do it
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Don't panic. Calm down. Take a deep breath. Realize that it has been this way for years and you don't have to solve the problem this week.
Lets say there is a real problem.. It is going to cost 20k to fix (number pulled from my ass) and you are easily going to loose another 10k on realtors fees and expenses to just sell out and go rent again. From your earlier e-mail it doesn't sound like that is an option for you (it sure wouldn't be for me). So just put the sell and move idea out of your mind for the time being. It's a broken house but it's your broken house.
First step is to bring in an engineer to look at the problem, let you know if there is a severe problem and if there is how to fix it. Assuming there is a problem, and from what you say there probably is, take that report to an atty and let them take it from there. The atty will tell you how to proceed. The disclosure does mean something. You probably have a good case against all party's involved.
Realize that a resolution to your problem is probably two years away. I know it is hard, It's aggravating and it's wrong but if you can accept that fact now then the whole process is going to be much less stressful for you.
My last thought would be to not contact the seller, real estate agent or inspector again. Wait until you have the report and an atty and let the atty guide you. If you tip your hand now you are just giving them a head start to find a way out of it.
Steve
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What Steve said.
And in the meantime, it's a house for the living. Plan a party in it; do a little redecorating. You can't sit on this problem and ignore it, but it isn't going to fall down tomorrow either.
Banty
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wrote:

Good advice, thanks. I don't want to tip my hand or give them a head start.
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