DEAR BARRY: We bought our home about a year ago. When the first rains came, our family room was flooded, and the insurance company refused to pay the claim because the patio was sloped toward the building and because the pavement was above the weep screed on the stucco wall.
We paid a contractor to replace the patio. He sloped it away from the building, but it is still above the weep screed, so rainwater still leaks into the house. Thus far, our costs for flood damage, including mold removal, are nearly $30,000. It seems unfair that we are stuck with these expenses.
Nothing about faulty drainage was mentioned by our home inspector, the termite inspector, the sellers or the real estate agent. The agent recommended the home inspector but now disclaims liability because we were the ones who scheduled the inspection. Is anyone liable for nondisclosure, or are we left holding the bag? –Gary
DEAR GARY: Your situation raises a number of issues. So let’s start with who may be liable.
The home inspector and the termite inspector are both at fault for not disclosing the slope of the pavement and the fact that it covers the stucco screed. Any home inspector worthy of the title routinely looks for drainage problems of this kind.
Pest control operators (termite inspectors) routinely disclose such conditions because they are classified as "section two" issues — that is, conditions that can lead to infection by wood-destroying organisms. The home inspector and termite inspector can point fingers of blame and denial at each other, but they were both professionally negligent when they overlooked apparent faulty drainage.
Your agent may also be liable if he gave you the name of one home inspector only. If he gave you a list of names from which to choose, he may be off the hook. However, the list that he gave you may or may not have included the best home inspectors available. Some agents place their preferred inspector at the top of the list, but the top position is not always reserved for the best.
If the sellers owned the home for at least one rainy season, it is reasonable to assume that they knew about the drainage problem. It may be difficult or impossible to prove that they knew, but if they owned the home for several years, it is unlikely that they never had water intrusion.
Next in line is your contractor. If the pavement he installed covers the stucco screed, then the work he did was substandard. Installing pavement without clearance to the screed is a violation of the building code. Every building contractor should know this.
Finally, there is the denial of your claim by your insurance company. Homeowners insurance policies typically exclude the water source from coverage but pay for the resultant damage to the building. You should have your policy reviewed by an attorney to see if the carrier is unfairly denying the claim. At the same time, you can get a legal opinion regarding liability of the inspectors, the sellers and the agent.
