You might need a lawyer to assess home-sale contract

Mailbag

April 25, 2004

Dear Mr. Azrael:

I recently bought a house and after closing, I learned that a deck had been built by the previous owner without a permit.

An electrical inspector from Baltimore who was inspecting some other work that was being done (with a permit) noticed that the main service line to the house was directly overhead running across the deck.

I was required to relocate the service line.

Do I have any recourse against the previous owner?

I suspect that they will claim the home was bought "as is." There was no mention at closing about this deck. Do the words "as is" protect them? Or was a fraud committed by failure to disclose a material fact?

Dear Reader:

The term "as is" generally means the seller is not making any representations or warranties about the condition of the property.

Unless your sales contract included express provisions dealing with the condition of the home or the deck, you probably have no legal rights against the seller under the sales contract.

Nevertheless, I recommend that you let your lawyer review all the sales and settlement documents and consider the specific facts of this transaction.

You could have claims by virtue of other documents signed by the seller, or by provisions of the Maryland Consumer Protection Law.

Your lawyer can find the seller's signed documents at settlement, certifying there are no building code violations affecting the property.

Under Maryland's consumer protection statutes, it's an "unfair or deceptive trade practice" to make a false statement in the sale of "consumer realty" (including homes) or to fail to state a material fact if the failure deceives or tends to deceive a consumer. Your lawyer can assess the impact of the contractual "as is" clause on these potential claims.

In addition, there might be claims against the contractor who built the deck based on negligent design or construction.

It could be actionable negligence to build a deck without a proper permit and without relocating an overhead power line.

The validity of negligence claims depends on when the deck was built, as there is generally a three-year statute of limitations on negligence claims.

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