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Blog Post June 15, 2021
March 4, 2022 revision

Home Inspection: Prevention Is Always Better Than Cure

Whether a home purchase is the first or one of many, Washington home buyers know the process is stressful and demanding. No matter how experienced and trustworthy the buyer’s team, including realtor, mortgage broker, escrow agent and other advisors, the lion’s share of responsibility lands squarely upon buyer shoulders.
Among the stressors baked into the cake is the home inspection.
Buyers hope and expect that most home defects are visible to the naked eye, and when they are, the result can be a reasonable reduction in price or other accommodation. But what about less obvious defects? What about hidden wood rot? Pest infestations? Foundation problems?
Home inspectors do their best to help home buyers avoid pitfalls, but a home inspection is not designed to be a deep-dive. No walls are opened. There is always the possibility that seller may have taken steps to conceal issues from the inspector by painting over that spot of wood rot, cleaning up tell-tale mouse droppings, or relocating carpet over a foundation crack. Inspectors can’t be expected to find it all—just to do the best they can in a limited amount of time. The inspection agreement will limit the inspector’s exposure should expensive defects present after move-in.
Buyers have avenues of recourse when the dream home turns into a nightmare, but let Erasmus’ admonition be your guide: Prevention is always better than cure.
Pre-1994, Washington was considered a “buyer beware” state, placing the burden of discovering home defects squarely upon the buyer. That is no longer the case. Washington State law, primarily through RCW 64.06.020 – Sellers’ Duty to Disclose and the Form 17 Disclosure attached to the Purchase and Sale Agreement, requires sellers to disclose home conditions/defects to buyers before entering purchase and sale agreement. Purchase and sale agreements typically require the seller to repair such defects before turning the home over to buyers.
However, not all sellers fill out the Form 17 completely, and there is no direct legal cause of action for failing to accurately complete the form. Sellers weigh the costs of disclosure and repair against potential consequences, especially if disclosure is likely to defeat the sale.
Other causes of action can be raised: the Washington State Supreme Court in Jackowski v. Borchelt, 174 Wash.2d 720, 278 P.3d 1100 (2012, En Banc), upheld a fraudulent concealment claim wherein sellers concealed a foundation leak with carpet. Negligent and intentional misrepresentation claims may be available against sellers and their agent(s).
A home listing noted as “Exempt” from Form 17 disclosure should raise red flags. Sellers may have different reasons for listing the home as Exempt, and many of those reasons are not legitimate. Property owned by a Trust, for example, is not Exempt from Form 17 disclosure. Lack of knowledge doesn’t absolve a seller from duty to report Form 17 any more than ignorance is an excuse for breaking any other law. If you see Exempt as to Form 17, hit the brakes, and discuss the exemption with your realtor, in depth.
Breach of Contract arises where the sellers expressly include the Form 17 in the Purchase and Sale Agreement, fail to make mandatory disclosures, and fail to accurately complete other forms attached to the PSA. Selling agents have responsibilities under RCW 18.86.030(1)(a)(b)(d) – Fiduciary Duties of Brokers. If legal action is necessary, RCW 19.86, the Consumer Protection Act, may provide for attorney’s fees specifically to discourage this kind of demonstrable bad faith in business.
No one wants to get tied up in a lawsuit if one can be avoided. The importance of remaining vigilant through all stages of the home purchase cannot be overstated. Attend the home inspection, ask questions, prepare to jump into action when the home inspector reports a “spot” that requires further investigation. Remember that one little “spot” of wood rot may indicate a much larger problem. Don’t let your enthusiasm for the home and visions of life in it cloud your judgment: if potential problems arise, STOP everything. Get on the phone, hire a professional in the specific field, and get a full evaluation before making another move. Do it quickly: the PSA is likely to allow only a limited amount of time (as brief as 5 days) to conduct fuller evaluations and, if necessary, get one’s earnest money back.
Starting the search over anew may be disappointing, but it will always, always, always beat a money pit and a legal war.

GPV:gpv

Blog Post July 26, 2021

I Quit! - But First:

The global pandemic finds more folks working from home, or with flexibility they previously did not have. Unfortunately, the new reality has done little to curtail the kinds of employer tomfoolery that can be the basis for a lawsuit. Employers continue to dishonor employment contracts, improperly terminate workers, or treat their employees a manner far outside the realm of professionalism.
If you’ve reached the end of your rope, and something rotten is afoot, don’t quit just yet. You have one last job to do before slamming the door behind you:
You need to gather evidence. All you can get your hands on.

To the worker, an employer’s failure to follow the law may appear as clear as day. But to the law, it’s never that clear. Both parties are bound to produce evidence that supports their actions (or lack thereof). Worse, although the Rules of Discovery require employers to turn over all documents relevant to the employee, it’s not uncommon for “smoking gun” emails or correspondence to go “missing” when it comes time to hand it over.
So, you have a job to do before you walk out that door for the last time: get your hands on every piece of information you can. Forward all those email messages to yourself, at your home email address. Copy relevant hard copies of documents you don’t have electronically stored. When was the last employee handbook given to you? Find it, and if you can’t find it, ask someone for a copy. Contact HR and request a copy of your employment contract, and anything else they have on file. They don’t need to know why you’re asking. Have you previously filed a complaint against a co-worker or supervisor? Get it. Do dangerous working conditions exist that have caused harm or injury? Take pictures. When a work situation becomes untenable such that legal action may be warranted, your job is to become your first best investigator. Find, collect, and save all the evidence you can get your hands on.
What about that incident that your fellow employee witnessed, where your boss refused a proper break, or used a racial slur, or made their latest sexist comment? What about the constant barrage of inappropriate jokes in front of co-workers? Those coworkers may be willing to tell their stories now, but less so later. There is no shortage of instances in which coworkers who witnessed blatantly egregious acts somehow “forgot” what they saw at deposition or declaration.
Be your own best advocate before you seek counsel. Talk to potential witnesses, ask them if they’re willing to write down what they saw. If they’re not, that’s okay—it’s their livelihood too, and they may not be prepared to put it ask risk. Don’t pressure them. Find out if they’re willing to talk to you about what they saw and take copious notes. Ask them to sign your notes if the notes are accurate and they’re willing. Find out if they sent email to another coworker describing what happened. These sorts of writings are important evidence that will carry tremendous weight if litigation is later determined to be necessary.
Never prolong a situation where your health or safety are at risk. However, if you’re in a situation where there is an ongoing pattern of harassment or mistreatment that can be documented, contemporaneous notes can also prove useful. Take as many as you can before you walk! When instances of the inappropriate behavior happen, write yourself a note, i.e.: “My boss just said there are too many women in this office,” or “my boss just called my co-worker (a racial epithet).” The more you write down at the time of the offensive action, the more useful the information will be for your attorney if it comes to that.

GPV:gpv