It will be hard to collect on `old termite' damage

MAILBAG

August 14, 2005

Dear Mr. Azrael:

My friend purchased her home about four years ago and at the time of the purchase, the seller disclosed that there was a termite problem that had been addressed by a pest control company. The seller indicated that all termite damage to the home had been repaired.

My friend recently hired someone to do the painting in her living room because there were several large unusual looking cracks in the walls that needed to be repaired, which she assumed was due to settlement, etc. When the painter/repairman cut the wall to remove the damaged sections, it was discovered that there was quite a bit of "old termite" damage that had never been repaired. She then had to pay several hundred dollars to have the wall reframed, etc.

The repairman indicated that this should in fact have been detected at the time the so called termite repairs had been made by the seller and it appears that it was just covered up. My friend has had annual termite inspections since the purchase of her home and all reports have been negative (no activity). Additionally, at the time of this discovery, she again had a pest control company come out to do a thorough inspection and they also confirmed that there has been no recent termite activity and that this was old termite damage.

Does she have any recourse with the seller since they stated that all of the termite damage had been repaired and it in fact was not? This was a large area behind the wall that was damaged and there was no way it would have been missed. Can she send a bill to the seller?

Dear Reader:

Your friend can send a bill to the seller, but shouldn't hold her breath for payment. This is a tough case that probably is not worth pursuing in court.

First, there's a three-year statute of limitations that may bar a claim based on the contract of sale. A claim based on misrepresentation may not be time barred, if it is brought within three years of the date the hidden damage was or should have been discovered.

Second, it will be difficult to prove that the seller actually said "all termite damage at the time had in fact been repaired." Unless the statement is in writing, the seller may deny the representation. For instance, the seller may claim that he/she said, "all visible termite damage has been repaired."

Third, your friend will have to prove that the seller knew or should have known that the representation was false. If the termite damage was hidden behind walls, the seller's knowledge may be difficult to establish.

Since the damages are only "several hundred dollars," it is probably not cost effective to hire a lawyer. If she wants to litigate, your friend can file a small claim action against the seller in state District Court.

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