Legal Question in Real Estate Law in California

I bought a house in San Jose, CA. Seller disclosed due to wind/rain damage, waterproof balcony on top of balcony was redone. I did not pull a permit or hire a contractor to eval the situation before buying. Within a month of moving in, I found mold in garage and the waterproof was done without permit, without following code. I would like to sue the seller, any lawyer would like to do it based on contengency fee structure? Should I sue seller agent and the contractor too?

Asked on 7/26/10, 12:25 pm

3 Answers from Attorneys

Timothy McCormick Haapala, Thompson & Abern, LLP

You have a less than entirely straightforward case. You may have trouble getting it taken on contingency. The problem is that you had rain damage disclosed, but you elected not to hire a contractor to inspect everything before closing the sale. Unpermitted work and work not to code must be disclosed, but most homeowners can honestly disclaim knowledge that the work was done without permits or not to code. What homeowner is qualified to pass judgment on whether work is to code? And they will always say "the contractor SAID he pulled a permit." They will also try to argue that the mold was due to the original water problem that was disclosed. We lawyers who do contingent fee work are not really very interested in cases where there might be no recovery at all. Contingent fee cases are usually for situations where recovery is fairly certain and only the amount is meaningfully disputed.

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Answered on 7/26/10, 3:48 pm
Joel Westbrook Miles & Westbrook

Whether a lawyer is willing to take a case on a contingency fee basis very much depends on the amount of damages and the merits. In order to sue the seller's agent or the contractor, you would need evidence that the seller's agent committed fraud or that the contractor was negligent. Before you go further, I would suggest that you get a fix on your damages, such as what it will cost to address the mold problem in the garage.

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Answered on 7/26/10, 3:56 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

This would be a difficult case to win; too many potential defenses and difficult-to-establish facts. You would probably have to pay some expert witnesses, and they don't usually accept contingent fees (and probably should not, due to the extra potential for biased testimony).

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Answered on 7/26/10, 6:05 pm

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