Legal Question in Real Estate Law in California
Need to sue builder for Non-Disclosure of UPS Cargo Flight Path
We bought a home on April 30, 2008 in Ontario, CA. The builder didn't tell us this property is in the flight path of UPS Cargo planes at night. I am sleep deprived because I can't get enough sleep due to the extremely loud planes all night long. I hired an attorney, but he hasn't filed the lawsuit yet. I reminded him about the 1-year period which is up next week. He told me he's just been called into court on another case. HELP! We need to get our downpayment back to buy another home somewhere where I can get some sleep. The builder knew about the issue, and they purposely didn't tell us. What they put in the contract was, ''You may hear some noise and vibration.'' This doesn't translate into ''You are in the fight path of UPS Cargo planes at night'' which carries a whole other meaning to it than some noise and vibration. If I try to sell the house, I have to disclose this issue. They should have told us because we would have never bought the house had we known. HELP! HELP! I'll file the suit in pro per, but I need help fast. Thank you.
3 Answers from Attorneys
Re: Need to sue builder for Non-Disclosure of UPS Cargo Flight Path
If you want to contact me, if I take on the case and you retain me. it may be possible to get something on file in as little as one court day.
Best,
Daniel Bakondi, Esq.
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Re: Need to sue builder for Non-Disclosure of UPS Cargo Flight Path
Anybody can sue anybody for anything; BUT, that airport has been there for a long time before you bought. It wasn't hidden from you, or built after your house. This is a situation where you had open and notorious 'notice' of the situation. That you didn't check it out more thoroughly is not the fault of the developer. Unless you can prove active concealment of a situation that you couldn't otherwise have known about, then I would rate the likelihood of you winning as 'low'. You should seriously consider the risks of losing that suit and owing attorney fees to the other side, before you file.
Re: Need to sue builder for Non-Disclosure of UPS Cargo Flight Path
CA Civil Code �1103.4 requires disclosure by a Seller where the home is located within an "Airport Influence Area." That is defined as, "the area in which current or future airport-related noise, overflight, safety, or airspace protection factors may significantly affect land uses or necessitate restrictions on those uses as determined by an airport land use commission."
The Statute goes on to provide that a very specifically worded disclosure must be given in the event of the presence of an "AIA," which only requires the following disclosure "The property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (for example: noise, vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property before you complete your purchase and determine whether they are acceptable to you."
The Seller cannot modify the language in that disclosure. It effectively puts the burden on you to decide if the noise is acceptable to your unique sensitivity. Remember, the developer did not live in these properties and probably never worked on them in the middle of the night. As such the developer probably never had actual knowledge of the conditions, and isn�t required to investigate them further than the review of �AIA� maps. Further, if the home isn�t located in a mapped "AIA," then the developer wasn�t even required to give that disclosure - regardless of the noise you may experience. I can almost guarantee that the disclosure you received was exactly as set forth above, and as such the developer met his obligation required by law. To make matters worse, if he relied on an engineer to prepare the �1103.4 disclosures, the developer is off the hook and has statutory protection from liability for this disclosure, right or wrong. You can keep looking for an attorney, and I encourage you to do so, but I would guess this has more to do with the decline in values you have experienced in the IE over the past year than the actual noise causing your home to be worth less than it was when you bought it. You are correct - you need to get a suit on file before April 30, 2009 to survive the statute of limitations, but do beware that you almost certainly did agree to pay attorneys fees if you lose.
*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.
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