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Septic Issues

Posted by vakitchen (My Page) on
Fri, Jun 11, 10 at 8:17

We have put a contract in for a lake house, it was listed as 3 bedrooms on the main level with a possibility of a 4 bedroom expansion in the basement, 3 bath home. When the contract was written my agent marked disposal, and a 4 br septic. The seller, who is also a broker, signed everything. Part of the contract was a septic tank inspection. A few days after later the seller asked if we would initial that there was no garbage disposal and that the house had a 2br septic. We then felt we needed to find out if the field could be expanded to a 4br. Long story short it can be for about $12,000 to $15,0000. We asked that the seller give us $5,000 in closing cost so we could use that to expand the filed. She said no. We want the house and will buy it, but now we are thinking that perhaps we should hire an attorney and get the seller to pay for the entire upgrade. I am also thinking of going to the board of realtors.

Any ideas? Can we go forward with the house and take legal action after we go to closing?


Follow-Up Postings:

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RE: Septic Issues

What area is the house? In my area, those extra bedrooms would be illegal. The septic needs to be the same size as the bedrooms. I'd get legal advice,

Jane


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RE: Septic Issues

We are in Virginia, you cannot classify the bedrooms in the basement because the windows are not large enough for someone to get out of. It is a walkout. The basement rooms are not our issue, it is the 3 br upstairs and the 2 br septic. I agree, about legal advise. Thanks!!


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RE: Septic Issues

On a lake the current regulations may (or may not) be way more stringent as to placement, size and type of septic.

So, it could be that any request to modify or change the current septic will open a can of worms.

Here, for instance, an old, existing field would sit grandfathered in but any modifications to the field or house (such as an addition) would require you to decommission the current field and build from scratch a conforming one.

That can get expensive, especially if they class the soil as contaminated, which they do here. So you have to truck out the old field and truck in engineered soil on top of a brand new pressure system, sited well away from the body of water.

Also, near water, gravity systems no longer are approved here, so you have to go for a pressure system with the tanks, etc. Cost id high as it usually involves blasting rock out of the way.

Get advice before you further commit.


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RE: Septic Issues

I would not close before the issues are settled.


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RE: Septic Issues

"Can we go forward with the house and take legal action after we go to closing? "

On what grounds?

You have the facts and purchased anyway.

You have no cause of action to sue the seller since you have all the facts.

You can use the incorrect septic size to void the contract and get your earnest money back, but that is about it.


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RE: Septic Issues

Why would you be willing to absorb an estimated $7,000 in extra costs over what you've contracted to pay for the house?

If your contract falls through, the seller must find another buyer, & since it can be documented that he now *knows* that the septic system is inadequate, he'll have to disclose it to any potential buyer.

Consult your own agent, but I think you're in a good position to "negotiate" hard.

I my own personal self would tell the seller that I agreed to buy the house assuming that it had the usual amenities-
electricity, heating, cooling, & adequate sewer arrangements, & that I would waive my option to terminate if the seller would provide those things;
if not, I'd terminate the contract.

& I would ask my agent to forward it to the seller with a reminder in the cover letter that the seller might be obligated to disclose the problem to future potential buyers.

I am not an attorney, & I am not a licensed real estate broker in your state, so nothing in this message is intended to be legal advice or competent real estate advice;
it's just my own take on what I would do in your situation.

I wish you the best.


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RE: Septic Issues

I guess I am thinking along the lines of Brickeye on this. You haven't closed. There is a defect you must correct to live legally in this home. You have a good out NOT to buy it and get your money back. So, don't buy it. You are not 'harmed' in any sense I can see other than lost time and that's what inspections are all about.

What it boils down to is you WANT this property and you don't want to take it on the terms the seller wishes to sell it. If the seller knew it had an undersized septic and tried to pass it off anyway and not disclose that is an ethics issue you may wish to address in general. But I don't know if you can MAKE this person fix it and sell it to you. So, yeah, maybe you should ask an attorney, but I wouldn't want a property where I forced a sale and then had to wonder if there were any other issues.


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RE: Septic Issues

You might want to check out if the lake has an association that looks after the care of the lake and what their goals are BEFORE you buy. I know out where we are several of the lakes have changed over to grinder systems opting out of individual septic systems due in part to the size of lots.
If your lake has any problems and the association decides to go this route it's not an option of if you want to join it's mandatory.
You may want to see if something like this is in the works before you purchase. If your property owner is not being upfront about the septic then he may or may not be upfront about the plans of the lake authority too.


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RE: Septic Issues

The seller is a RE broker. No excuse for the deceptive listing, other than fraud. The seller obviously had second thoughts when it was time for the septic inspection because he/she KNEW that the septic inspection would reveal that he/she not only listed the house fraudulently, but knowingly signed a sale contract that included fraudulent information.

That said, septic regs have become far more stringent in most places. You had better make certain that you can indeed expand the septic legally...and get it in WRITING.

If so, and you then want to move forward with the purchase, you have good reason to go after the seller and play hardball for the seller to cover the cost, because surely he/she is in violation of their RE broker license. A threat to make a report to the state may motivate the seller to make good on his signed contract for a 3 bedroom, possibly 4 bedroom house.

However, IMO, this is probably not the only thing not disclosed, so buyer beware.


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RE: Septic Issues

Thank you all for your responses, it gives me a lot to consider. I did check with the HOA in reference to expanding the septic field, they go by what the county approves as long as it is 50' from the lake. Which the expansion would be 80' away. The county requires a 100 foot buffer, but makes exceptions. We will have to weigh all of our options and decide what to do. We would lose our money for the loan application, appraisal, home inspection and the septic inspection and soil test, about $3000.00. We also would lose the lake house and property that we really like. We have a great interest rate and we would have to start all over again. Our budget won't let us go above what we are paying for this property, everything else we have looked at is $150,000 to $400,000 more. I think I would have a good case against the RE broker because I had a ratified contract which stated that the septic was four bedroom. The seller said that it was an oversight and wanted us to initial that it is a 2 BR. We did not and will not do that. I really was ready to walk away, but my husband wants to go forward, but would like to get money toward the septic. I will also go to the board of realtors and file a complaint.


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RE: Septic Issues

The best advice you got was to talk to a real estate attorney.


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RE: Septic Issues

That is on my list for Monday morning!


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RE: Septic Issues

"We will have to weigh all of our options and decide what to do. We would lose our money for the loan application, appraisal, home inspection and the septic inspection and soil test, about $3000.00. We also would lose the lake house and property that we really like. We have a great interest rate and we would have to start all over again. Our budget won't let us go above what we are paying for this property, everything else we have looked at is $150,000 to $400,000 more."

You say you really like the lake house and property, plus everything else you have looked at is $150-$400k more?

That said, $15k doesn't seem like that much more for a place you really like.

Besides the HOA, you might want to check with the building and engineer dept's. and see what they have on file for this property (as well as the ones nearby).

I went to a building dept to see about a property we were interested in. The guy told me that the owner of the house ratted out his next door neighbor about his faulty septic after it overflowed onto his property. It contaminated his well. The house with the faulty septic was in foreclosure/vacant. Perhaps they didn't have the money to remedy the septic?

I like what Logic suggested, "A threat to make a report to the state may motivate the seller to make good on his signed contract for a 3 bedroom, possibly 4 bedroom house."

If it were me, I'd probably make an anonymous call to the state to see what they have to say about a broker selling a property with a septic that is clearly not zoned for the size of the house. I wouldn't name names. Yet.

Perhaps you can use this info to ask the seller to meet you half way. I would think she would rather close this deal than have to disclose this defect to any future buyers. If she isn't willing to budge then I'd go ahead and report her. You shouldn't be the only one to have to take a loss after trying to buy a property that should have been up to code in the first place.

It would be interesting to see what an attorney has to say.


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RE: Septic Issues

"Besides the HOA, you might want to check with the building and engineer dept's. and see what they have on file for this property (as well as the ones nearby). "

Health departments usually cover septic.

Make sure you have ALL your ducks in a row.


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RE: Septic Issues

If this house is 150K cheaper than anything else in the area that you like, there is a reason. And it's probably NOT just the septic. This smells pretty bad. Pun intended. Lake areas and septic systems are highly regulated. 15K doesn't sound like enough money to rectify this problem in a wetlands environment. Plus, if there were "misstatements" about this one important home system, what about the others? I think you really want to get a more thourough than usual home inspection from a licensed general contractor who is qualified to give you an opinion on the state of the major home systems. The septic could be the least of your worries. 200K+ in repairs later is not the time to be wiser on this one!


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RE: Septic Issues

The other homes that are for sale on the lake are larger 5-6 bedrooms, 2+ acres and docks. This house was built in 2006 and it is smaller, no dock, smaller lot about 3/4 of an acre. I have had a home inspection and everything is in good shape, structure wise, cosmetically not the case, the house was dirty, smokers, needed painting.

For some reason the seller opted to put in a 2 bedroom septic, the soil test came back as a 3 bedroom and the soil scientist put in a 3 bedroom tank, but the seller who filled out the application requested a 2 bedroom field. After our inspection of the septic and field we can add to the existing field with an alternative system. I have checked with the HOA at the lake about the rules, they will let you go within 50 ft of the lake, the county is 100 ft. but will make exceptions with plans that will include buffers, etc. We will have to go 80 ft from the lake. I have also contacted the health department and they said the previous owners of this property had a 3 bedroom perk.

I was ready to back out of this, but my husband wants to move forward. I just think the seller should be held responsible for signing a contract that contained a 4 bedroom septic. We were only asking for $5,000, but I think they should fix the septic to 4 bedroom.

Perhaps I will make an anonymous call to the state to see what they have to say about a broker selling a property with a septic that is clearly not zoned for the size of the house. I am amazed that the county/health department does not check the size of the house and septic.


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RE: Septic Issues

" I have checked with the HOA at the lake about the rules, they will let you go within 50 ft of the lake, the county is 100 ft. "

The county rules supersede anything the HOA has to say.

Be VERY careful.

This sound like a bomb waiting to go off for the purchaser.

Health departments that control septic have a lot of leeway and can make things VERY unpleasant when the rules are not followed.

Condemnation is within their power.


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RE: Septic Issues

Vakitchen,
Here in NC, a seller has to disclose that even though the house has "x" # of bedrooms, the septic is only sized for a 2 bedroom. This house is not legally a 3 or 4 bedroom home. If it was built by the seller, the county inspector should have mandated that only two of the bedrooms have closets. At least here, that is how it is done.
As others have said, you HAVE to get a written septic permit from the Health Department before you close!!! Do not close w/o this in hand!!! Verbal does not mean anything. Do not worry what the HOA tells you. They do not regulate septic systems.
Like others have said, use the sellers nondisclosure as leverage for either a price reduction, or to have them expand the field. If the seller refuses, you can still purchase the property, but do not do so w/o the written septic permit in hand.
And then after it closes, report the seller to the Commission for willful ommission.


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RE: Septic Issues

You can't force the seller to fix the septic. The contingency allows you to back out of the sale, but you can't compel them to make repairs. You are buying a house with 2 legal bedrooms. If they truly refuse to negotiate then you need to decide how much you want this house and how much risk you will take. But all documentation should reflect what is truthful.

"Possiblity" of bedroom expansion means nothing. They aren't saying it is a 4 bedroom, they are saying it could be a 4 bedroom. That is realtor speak, total BS (my house has 4 berooms and could have 10 if I finished out the attic and basement...means nothing). They advertised it as a 3 bedroom house, correct? I bet when the house was built one of those bedrooms wasn't a bedroom. It was labeled a den or something. Do all the "bedrooms" have closets and an egress window?


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RE: Septic Issues

It was listed on the RE brokers web page (who is also the seller) as 2 bedroom with a master suite and the possibility of expansion to 4 bedrooms in the basement. The 3 bedrooms upstairs have closets and windows. On the ratified contract the septic was a 4 bedroom, after the seller signed we were asked to initial the change to a 2 bedroom septic. I would think that when you sign a legal document you should be responsible for the items you agreed to, such as a 4 bedroom septic. I still think the seller needs to take care of it, but that is the question I have for the attorney.


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RE: Septic Issues

YOu really need to think about worst case scenario here. The lot has a permit for a 2 bedroom septic because it only perks for a 2 bedroom, and you have an illegal 3rd bedroom added. The Health Department can revoke your Certificate of Occupancy and or make you take it back to a 2 bedroom. It's happened here and many other places. Getting a variance to increase the septic near a wetlands isn't a cake walk. It's darn near undoable. You're not buying a 3 bedroom house. You're buying a 2 bedroom house with a BIG BIG problem that 5K won't begin to touch.


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RE: Septic Issues

"I would think that when you sign a legal document you should be responsible for the items you agreed to, such as a 4 bedroom septic. I still think the seller needs to take care of it, but that is the question I have for the attorney."

And if the seller refuses and you proceed to suit, what do you think the judge is likely to decide?

Rescission of the sale will be the first thing on his mind, especially if the seller appears willing to take the place back.

He is VERY unlikely to order a major improvement to meet the wording of the contract.

They did not "agree" to a 3-bedroom septic, they made a material misstatement of the property.

It would likely be different if you had a contract to build a house and the builder put in an undersized septic, but that is not the case here.


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RE: Septic Issues

If nothing else, if it should turn out that the septic field can't be expanded to legally service a 4 bedroom home, the OP should at the very least get refund from the seller for all of the inspection costs.

But for the sellers deception, it seems that the OP would not have agreed to purchase the home.


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RE: Septic Issues

"But for the sellers deception, it seems that the OP would not have agreed to purchase the home."

So cancel the contract.

The sale has not gone through yet.

You can try to recover funds, but if the seller balks you will likely spend way more than the funds in an attempt to recover them.

And after you even win a suit you still have to collect.


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RE: Septic Issues

brickeyee: "You can try to recover funds, but if the seller balks you will likely spend way more than the funds in an attempt to recover them.

And after you even win a suit you still have to collect."

Generally correct and....IF the seller was not also a RE broker, that may be indeed be the case.

My guess is that the seller would be willing to reimburse for the cost of inspections rather than face possible disciplinary action in terms of his license.

The OP has nothing to lose my making the request, and the cost of inspections to gain otherwise.


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RE: Septic Issues

I guess my biggest complaint about all of this is that the seller is a Broker, a Broker gives guidance to agents, of all people they should have made sure that everything was correct. The inspector of the septic said it is a new septic and in good shape and it can be expanded. I am filing a complaint against the broker, which needs to be done. Thank you all for your guidance it has been very helpful.


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RE: Septic Issues

vakitchen...good luck to you. I hope the seller gets slammed for your costs.


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RE: Septic Issues

I didn't read where the broker/owner did anything wrong. To the contrary, he wanted to correct the contract to a 2 bedroom septic by having you initial it after YOUR agent wrote in a 4 bedroom septic when you made the offer.
That's how I read it. Please correct me if I misread.


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RE: Septic Issues

I guess it is how you read things. The house was advertised as a 3 bedroom with a possibility of 4 more bedrooms in the basement. If I was listing this property and I knew that I had a 2 bedroom septic I would not list the house that way, I would say 2 bedroom house, which it could have been listed that way. My agent did put in a 4 bedroom septic, which as it was advertised should have. Before you sign a contract you should make sure that everything is correct and as a RE broker it should have been second nature. There were also other things that occurred that were not very professional,like not picking up phone calls from my agent for about 4 days in a row. In my book this is not professionalism.


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