Question: I want to take some kind of binding, legal action to require our previous owner to pay for replacing a broken sewer line. We purchased a house in Washington, DC five and a half years ago. Although the house passed inspection (our home inspector), the previous owner did not disclose the problem. When we discovered the broken sewer line about six months after purchase, I could not locate the seller.
We have now found him and I have an estimate to replace the sewer line. What are our options?
Answer: While there is a glimmer of hope that you can still sue your seller, I am afraid that your only real option is to bite the bullet, replace the broken sewer line and pay for it on your own.
There is a legal concept known as the "Statute of Limitations". This is a concept -- enacted into law by the local legislative body in your state (or by the City Council in Washington) -- which basically states that you have to file suit against someone within a fixed period of time or you will lose your rights to sue.
Why such a law? Because the Courts -- and the general public -- do not want to encourage litigation on matters which occurred years earlier. Memories fade, witnesses die, and it is difficult for a judge or jury to make a determination of the facts as to what really happened years ago. p> In the early days of our legal system, there were no such laws; litigation could be brought at any time -- often years after the event being challenged took place. However, as our legal system developed, the Courts (and then the state legislatures) began to put limits on the length of time in which a lawsuit could be brought.
Now, all states (and the District of Columbia) have statutes setting fixed time limits after which a lawsuit will not be entertained by the Courts. The underlying purpose of such statutes is to force a person who believes he/she has a cause of action to bring that action to the Court within a reasonable period of time.
Defendants -- until proven wrong -- are presumed innocent, and are entitled to their full -- and complete -- day in Court. If that day should occur years after the alleged incident, it is often difficult -- if not impossible -- to present a fair and full defense.
In the words of an early Supreme Court case: "Statutes of limitation are founded upon the general experience of mankind that claims which are valid are not usually allowed to remain neglected if the right to sue thereon exists."
Thus, in general, the Statute of Limitations which impacts on you is three years in the jurisdiction where you purchased. Since you purchased your house over 5 years ago, I seriously doubt that you will be able to prevail against your seller.
There is one important exception to the applicability of the Statute of Limitations, and this is known as the "discovery rule". Under this concept, the time when the Statute begins to run starts when you discovered the wrong.
Otherwise, it would be unfair to Plaintiffs to restrict their ability to sue, when they only recently discovered that they had a problem.
In your case, had you discovered the broken sewer lines within the past three years, you would have the right to sue -- and the Statute of Limitations would not apply. However, you have admitted to me that your discovered the problem almost five years ago.
You have indicated that the only reason you did not take legal action earlier was because you could not located your seller? In some instances, this might be grounds for tolling (suspending) the running of the Statute. For example, in many States throughout the United States, some exclusion is made during the time that a defendant is not within the jurisdiction of the state Courts. However, you have to look at the specific statute where you live, since the laws vary from state to state.
For example, in the District of Columbia, if a person who is a resident of the District is out of the District at the time a cause of action accrues, "the time of his absence.. may not be computed as a part of the period within which the action must be brought."
Thus, in your situation, it appears that the cause of action accrued when you discovered the broken pipes -- i.e. five years ago. Was your seller out of the area at that time? Did you conduct a diligent search for him, and when did you finally discover his whereabouts.
While you still have be able to avoid the Statute of Limitations, it will be a difficult task, and the burden will be on you to prove all of these facts.
The next question goes to the merits of your case. Can you prove that the seller knew about the broken pipes when he signed a contract to sell you the house? Clearly, the seller will argue that your own inspector approved the house, and that if the pipes were broken before settlement, that would have been discovered by your inspector.
Have you already replaced the broken pipes? Did you take pictures? Will you be able to prove that at the time you bought the house the pipes, in fact, were defective? Is it possible that the pipes broke after settlement -- when it would have been your exclusive responsibility? Also, did you replace all of the pipes from the street, or just those pipes on your property? This is important, since the District may have had some responsibility for pipes which were not within your property.
Finally, what damages are you seeking? You will not get money from the Court for any pain and suffering you may have had; your exclusive right to damages is to reimburse you for the actual amount of money you spent to replace the pipes.
Are the damages less than $5000? If the answer is yes, you can go to Small Claims Court in the District. (NOTE: different amounts exists for Small Claims courts in other jurisdictions). In this Court, while it would be helpful to be represented by legal counsel, it is not necessary.
However, if your claim for damages exceed the jurisdictional limit of this Small Claims Court, you will need to retain counsel -- and this can become expensive. Keep in mind that even should you win your case, you will probably not get reimbursed for your legal fees.
We follow what is known as the "American Rule" of legal fees; generally, unless there is a specific statute or a provision in a lease or contract authorizing legal fees to the prevailing party, each side pays their own lawyer.
Clearly, you do not want to spend $7-10,000 to recover $8,000.
Thus, you may want to consider taking the loss, and crossing it off as a "learning experience".