Question on Seller's Disclosure regarding Material Defects

4 Replies | Chicago, Illinois

Have a question on something mentioned in sellers disclosure on the contract. In the disclosure section, sellers mentioned that “they are aware of leaks or material defects in the roofs, ceilings or chimney”. In the additional comments section, they mentioned “there was a some leaks which was fixed two years back and there were no issues since then.”

I did the inspection and they didn’t find any issues on the report either since the roofs were dry during inspection. My question is - material defect definition in the contract (provided below for reference) specifies sellers to call out any conditions “unless seller believes that condition is corrected”. If they think it’s fixed why are they disclosing it as a material defect? Is it because they think there are no issues but not sure if it’s fully corrected? Or is it standard to call them out as material defects even if we fixed it in the past.  Should I ask our attorney to ask anything to clarify this since it's fine during visual inspection? What would be the best practise in such a scenario to make sure this won't be an issue once we move in. 

Definition from contract - “material defect means a condition that would have a substantial adverse effect on the value of the residential real property or that would significantly impair the health or safety of future occupants of the residential real property unless the seller reasonably believes that the condition has been corrected.”

@Ryan Bird

To me it sounds like they are covering their butt. Having said that, I'd have a good look, or a thorough inspection, looking for a leak, but more specifically for any shoddy workmanship...

If it needs, or soon will need, work, you have a decision to make.

If its good, its good...

People often make the cheapest most temporary repairs if they know they are leaving..

This may not be the case, but it would be my first thought.

The reality is that almost nobody involved (buyers/sellers/agents) actually reads and understands the whole "material defect" thing. So they likely disclosed the previous issue to cover themselves in case you rip back the roofing some day and find damaged decking or something of the sort and then want to (unsuccessful) try to sue them. Its a good sign of an honest seller.

Don't place any value on disclosures, perform your own due diligence like inspections. Unless the seller was blatantly covering up a HUGE issue (like recently constructing a wall in front of a collapsing/leaking foundation), your chances of successfully wining a lawsuit are very low, and your chances of actual recovery even less.

So what do you do? You employ professionals to assess the condition of the property. If you're concerned about the roof, hire a licensed roofer (and preferably someone HAAG certified for residential roofing) to perform an inspection and have them review the repair records as well. Your home inspector is limited in knowledge as to specific trades and normally will only be able to spot certain red-flags which will cause them to then refer you to a licensed tradesman for further evaluation.

Many of the Agents I work with will have the Seller disclose past defects (leaky roof) and that the Seller has (a) made repairs and (b) no new leaks have occurred since the repairs.

I believe they do this because even though the Seller "said" the defect was repaired, the Agent doesn't really know that to absolutely true.  Once the past defect is disclosed to the Agent, that Agent will disclose the Seller's statement of fact that the defect was repaired.

Now it's up to you to do your due diligence to make sure the defect WAS actually repaired.

Of course ask your Attorney to request all the information they have about the defect, including who made the repairs and if the warranty is transferrable.

@Matthew Olszak's advice about hiring a roofer is spot on good advice.

Good luck.