Can I Get Recourse if I Find Mold Due to Leaks in a Mobile Home I Bought 12 Years Ago?
Full Question:
Answer:
The Lemon Law will not apply if the home weighs more than 10,000 pounds. Mold cases often present difficult issues of proof with regard to causation and damages, due to the lack of standards for mold. Some of the issues that will be considered, among others, include the cause of the mold, whether proper measures were taken to inspect the property, if a problem was previously discovered, the adequacy of the steps take to cure the problem, the completeness and accuracy of the disclosures made. Also, the insurance policy coverage will be a factor, as some policies exclude coverage for mold. It is recommended to discuss mold coverage with the insurer involved.
In addition to express warranties included in the agreement of the parties, North Carolina has recognized the implied warranty of workmanlike construction as a matter of law. This implied warranty applies to every contract by a builder for the sale of new dwelling, and requires the builder to impliedly warrant to the initial purchaser that at the time of passing the deed or delivering possession to the initial purchaser (whichever occurs first), the dwelling, together with all its fixtures, is sufficiently free from major structural defects, and has been constructed in a workmanlike manner, so as to meet the standard of workmanlike quality according to prevailing standards in the local area. The implied warranty only applies to latent defects, i.e. not to visible defects or those which should have been visible and could have been found by reasonable inspection at the time of closing. If an owner takes delivery of the home without objection to obvious, visible defects, this implied warranty will not apply to a subsequent claim based on such deficiencies.
Claims under this implied warranty of workmanlike construction may be brought in court by an owner for a period of three years after discovery of the latent defect. However, the statute of repose will bar a suit on any defect not initiated within six years after the date of closing, unless the defect was caused by gross negligence. If the home is occupied by the first purchaser and if the defect could reasonably be classified as latent, a claim based on an implied warranty may be brought for up to 6 years after the substantial completion of the home.
A warranty is required by statute in NC for manufactured homes. The following statutes apply only to manufactured homes:
Manufactured home. — A structure, transportable in one or more
sections, which, in the traveling mode, is eight feet or more in width or
is 40 feet or more in length, or when erected on site, is 320 or more
square feet, and which is built on a permanent chassis and designed to be
used as a dwelling with or without a permanent foundation when connected
to the required utilities, and includes the plumbing, heating, air
conditioning and electrical systems contained therein.
§ 143-143.16. Warranties.
Each manufacturer, dealer and supplier of manufactured homes shall
warrant each new manufactured home sold in this State in accordance with
the warranty requirements prescribed by this section for a period of at
least 12 months, measured from the date of delivery of the manufactured
home to the buyer. The warranty requirements for each manufacturer,
dealer, supplier and set-up contractor of manufactured homes are as
follows:
(1) The manufacturer warrants that all structural elements, plumbing
systems, heating, cooling and fuel burning systems, electrical systems,
and any other components included by the manufacturer are manufactured
and installed free from substantial defects.
(2) The dealer warrants:
a. That any modifications or alterations made to the manufactured home
by the dealer or authorized by the dealer are free from substantial
defects. Alterations or modifications made by a dealer shall relieve the
manufacturer of warranty responsibility as to the item altered or
modified and any resulting damage.
b. That a setup performed by the dealer on the manufactured home is
performed in compliance with the Code.
c. That the setup and transportation of the manufactured home by the
dealer did not result in substantial defects.
(3) The supplier warrants that any warranties generally offered in the
ordinary sale of his product to consumers shall be extended to buyers of
manufactured homes. The manufacturer's warranty shall remain in effect
notwithstanding the existence of a supplier's warranty.
(4) The set-up contractor warrants that the manufactured home is set up
in compliance with the Code and that the setup did not result in any
substantial defects.
The following may apply if the home was not purchased new and there was fraud involved in the sale, which might toll the statute of limitations which would otherwise bar a claim against the seller, inspector, or realtor:
Defects listed on a disclosure form may also include appliances, electrical system, water and sewer system, roofing, structural and foundation problems, moisture, and others. Latent defects are problems with the property that the buyer or buyer’s agent is not able to discover through a normal inspection. It is a hidden or dormant defect in a premise that cannot be discovered by observation or a reasonably careful inspection. Some states interpret latent defects to mean structural items (including foundational problems) and safety items. The disclosure laws typically require material or important defects to be disclosed. If the seller provided a warranty, there may be recourse through a breach of warranty claim. Also important is whether you elected to have a home inspection performed and whether that inspection revealed any problems.
Whether you can hold a home inspector responsible for missed defects depends upon whether the problems were visually discernible and within the scope of the inspection. The answer depends partly on the terms of the contract for the inspection and what was covered by such inspection. If not addressed in the contract, the court will judge whether such a defect should have been discovered based on the circumstances involved and inspection industry standards. Home inspectors routinely disclaim liability for property defects that are located below ground, under slab floors, beneath insulation, within walls, behind personal property, inside fixtures and appliances, or for any reason whatever, not fully exposed and readily accessible at the time of the inspection.
Whether the seller is liable will depend on all the facts involved, such as any warranties and disclosure statements that may have been provided by the seller. Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also be made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.
To constitute fraud, a misrepresentation or omission must also relate to an 'existing fact', not a promise to do something in the future, unless the person who made the promise did so without any present intent to perform it or with a positive intent not to perform it. Promises to do something in the future or a mere expression of opinion cannot be the basis of a claim of fraud unless the person stating the opinion has exclusive or superior knowledge of existing facts which are inconsistent with such opinion. The false statement or omission must be material, meaning that it was significant to the decision to be made.
Sometimes, it must be shown that the plaintiff's reliance was justifiable, and that upon reasonable inquiry would not have discovered the truth of the matter. For injury or damage to be the result of fraud, it must be shown that, except for the fraud, the injury or damage would not have occurred.
To constitute fraud the misrepresentation or omission must be made knowingly and intentionally, not as a result of mistake or accident, or in negligent disregard of its truth or falsity. Also, the plaintiff must prove that the defendant intended for the plaintiff to rely upon the misrepresentation and/or omission; that the plaintiff did in fact rely upon the misrepresentation and/or omission; and that the plaintiff suffered injury or damage as a result of the fraud.
Generally, a realtor isn't liable for house defects unless a warranty was provided or they knew of the defect. Cases from a few states hold that the broker is not liable for incorrect information provided by the seller if the broker has no basis to know or suspect the information is inaccurate. The prudent broker should ask the seller to provide written information and documentation if it exists. Information provided to the buyer may include the written qualification that the broker is not warranting the accuracy of such information. Often the real estate disclosure statement will insulate the broker from liability. However, not all property conditions or representations are covered by the standard disclosure statement.
The following are NC statutes:
§ 20-351.1. Definitions.
As used in this Article:
(1) "Consumer" means the purchaser, other than for purposes
of resale, or lessee from a commercial lender, lessor, or
from a manufacturer or dealer, of a motor vehicle, and any
other person entitled by the terms of an express warranty to
enforce the obligations of that warranty.
(2) "Manufacturer" means any person or corporation, resident
or nonresident, who manufactures or assembles or imports or
distributes new motor vehicles which are sold in the State
of North Carolina.
(3) "Motor vehicle" includes a motor vehicle as defined in
G.S. 20-4.01 that is sold or leased in this State, but does
not include "house trailer" as defined in G.S. 20-4.01 or
any motor vehicle that weighs more than 10,000 pounds.
(4) "New motor vehicle" means a motor vehicle for which a
certificate of origin, as required by G.S. 20-52.1 or a
similar requirement in another state, has never been
supplied to a consumer, or which a manufacturer, its agent,
or its authorized dealer states in writing is being sold as
a new motor vehicle.
§ 143-143.16. Warranties.
Each manufacturer, dealer and supplier of manufactured homes shall
warrant each new manufactured home sold in this State in accordance with
the warranty requirements prescribed by this section for a period of at
least 12 months, measured from the date of delivery of the manufactured
home to the buyer. The warranty requirements for each manufacturer,
dealer, supplier and set-up contractor of manufactured homes are as
follows:
(1) The manufacturer warrants that all structural elements, plumbing
systems, heating, cooling and fuel burning systems, electrical systems,
and any other components included by the manufacturer are manufactured
and installed free from substantial defects.
(2) The dealer warrants:
a. That any modifications or alterations made to the manufactured home
by the dealer or authorized by the dealer are free from substantial
defects. Alterations or modifications made by a dealer shall relieve the
manufacturer of warranty responsibility as to the item altered or
modified and any resulting damage.
b. That a setup performed by the dealer on the manufactured home is
performed in compliance with the Code.
c. That the setup and transportation of the manufactured home by the
dealer did not result in substantial defects.
(3) The supplier warrants that any warranties generally offered in the
ordinary sale of his product to consumers shall be extended to buyers of
manufactured homes. The manufacturer's warranty shall remain in effect
notwithstanding the existence of a supplier's warranty.
(4) The set-up contractor warrants that the manufactured home is set up
in compliance with the Code and that the setup did not result in any
substantial defects.
§ 143-143.17. Presenting claims for warranties and substantial defects.
(a) Whenever a claim for warranty service or about a substantial defect
is made to a licensee, it shall be handled as provided in this Part. The
licensee shall make a record of the name and address of each claimant and
the date, substance, and disposition of each claim about a substantial
defect. The licensee may request that a claim be in writing, but must
nevertheless record it as provided above, and may not delay service
pending receipt of the written claim.
(b) When the licensee notified is not the responsible party, he shall
in writing immediately notify the claimant and the responsible party of
the claim. When a responsible party is asked to remedy defects, it may
not fail to remedy those defects because another party may also be
responsible. Nothing in this section prevents a party from obtaining
compensation by way of contribution or subrogation from another
responsible party in accordance with any other provision of law or
contract.
(c) Within the time limits provided in this Part, the licensee shall
either resolve the claim or determine that it is not justified. At any
time a licensee determines that a claim for warranty service is not
justified in whole or in part he shall immediately notify the claimant in
writing that the claim or part of the claim is rejected and why, and
shall inform the claimant that he is entitled to complain to the Board,
for which a complete mailing address shall be provided.