I will need to sell my house in about 3 yrs and I am worried about a flooding and drainage issue on my property as a result of a drainage system my neighbor constructed on his property. The flooding only occurs during large storms and does not enter the house. During the storm a small portion at the back of my property floods with several inches of water and drainage overall is impaired. However, when the storm ends the water recedes so there is no standing water between storms. I have consulted with several land use attorneys and have been told that I can sue but that a lawsuit will cost between 50-100K and some have said even more because the neighbor's property is in foreclosure. Furthermore, I have been told by several litigators that I can be sued for fraud by the new buyer if I do not disclosure the issue but doing this would make my house difficult to sell and I will have to sell quickly for financial reasons. As a result, I decided to consult with several real estate transaction attorneys as well and I received conflicting opinions. They all tell me that I am under no obligation to disclose anything (New York State law) and that I cannot be sued after selling! Which group of lawyers should I trust? The lawsuit's cost would present a hardship for me and I am not sure if I can prevail because of the foreclosure complication. What's the best thing for me to do?
Answer
Under the current state of the law, a seller is supposed to fill out a disclosure statement, the terms of which survive the delivery of the deed: You can be sued for false statements in the disclosure. However, the law gives you the option to refuse to make any disclosures. In that case, you have to give the buyer a $500 credit against the price. That's not a typo. Five Hundred Dollars. Will the law change in three years' time? I don't know. My crystal ball is in the shop this week,and even when I have it, it usually tells me "Asking the right question is the jewel in the lotus." Odds are, it won't change but I don't predict the future when practicing law.
Meanwhile, you have two other things you can or should do. First, speak to a geotechnical engineer about the feasibility of putting a drywell system on your property. This would fix the drainage problem. The second thing is to set up a play to make the bank pay for the drywell. The exact tactics to validate and interpose the claim are a trade secret. You can contact me offline. It costs rather less than $50K, more like $7500 to get started and a cap of around $20K to see this to the semi-bitter end: appeals are outside the cap, but I don't think an appeal will be necessary.
Don't drag your feet on this: the longer you wait, the more likely the judge will tell us to go away, the foreclosure is too far along. If not me, speak to an attorney promptly.
This email does not create an attorney-client relationship and is not legal advice. Legal advice comes with a signed retainer agreement :-)
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