West Jordan, UT asked in Real Estate Law for Idaho

Q: We bought a home 3 days ago and discovered major water damage tonight. There is significant mold in carpet. Any rights?

The wall is very soft my husband put his finger right through it and the paint is bubbling. It has obviously been going on for sometime and we were not told about it. We did have an inspection done. Is the seller in anyway responsible for this?

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1 Lawyer Answer

Kevin M Rogers

Answered
  • Boise, ID
  • Licensed in Idaho

A: Seller's agent is responsible to inform buyer of known omissions to the buyer. The first question to be answered is: whether the seller had an "agent." Did you deal directly with the seller or someone else? An agent is a person who has been authorized to act on behalf of a principal towards the performance of a specific task or series of tasks. An agency relationship is created through the actions of the principal who either: (1) expressly grants the agent authority to conduct certain actions on his or her behalf; (2) impliedly grants the agent authority to conduct certain actions which are necessary to complete those actions that were expressly authorized; or (3) apparently grants the agent authority to act through conduct towards a third party indicating that express or implied authority has been granted. However, agency relationships are limited in scope to the express, implied, and apparent authority granted by the principal and only acts by the agent that are within the scope of the agency relationship affect the principal's legal liability. In addition, where an agency relationship exists, the principal has a right to control the agent. Where a party acts in concert with the principal but is not under his or her control, an agency relationship does not arise. Was the inspection called by the buyer or the seller? The inspector definitely has exposure for not catching the water damage, if a reasonable inspection should have uncovered the water damage. Idaho Code section 54-2093(1) of the Idaho Code says: "a client . . . whether buyer or seller, shall not be liable for a wrongful act, error, omission or misrepresentation of his broker or his broker's licensees unless the client had actual knowledge of or reasonably should have known of the wrongful act, error, omission or misrepresentation." I.C. § 54-2093(1) (emphasis added). Proving the seller had or should have had knowledge may be much easier to prove than attributing knowledge to the Inspector.

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