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  Dear
Steve,
We purchased a house about a month and
a half ago. During escrow we had a termite inspection done,
but none were found. Now we think we may have some infestation.
Who pays for this now?
-- Elisa
 Dear
Elisa,
Unfortunately, it may be you. Not to unduly
alarm you, but there have been some very costly, time-consuming
and relatively fruitless lawsuits filed by home buyers in recent
years over undisclosed termite damage.
That's not to say the seller or your inspector
won't accept liability if they've overlooked something, but
don't count on it. You should know that litigation in these
cases could be expensive and drag on for years.
Since you don't say where you're located and
who did the inspecting, we'll run through a few scenarios.
To begin with, different inspectors generally
do termite inspections and home inspections, although in many
places home inspectors can perform them. If you asked for
and received a termite "report" from a home inspector,
and he wasn't required to include this in his official inspection
report, then he's probably not liable for missing an infestation.
If an actual termite inspector missed a problem area, he could
be held liable, although many inspection companies have devised
clever ways around such liabilities.
That's because they often use ambiguously worded
contracts that are full of loopholes. And in many states,
the fine print will tell you that termite inspectors aren't
required to disclose any damage that they don't actually see
during the inspection. That's true even if the termite inspector
is aware of existing damage or suspects there is damage somewhere
in the house. One complication is that some areas of a house
are obscured and are very difficult to access for a truly
thorough inspection, and that's where you can really run into
problems and legal gray areas.
Of course, you'll want to re-examine your purchase
contract to determine if liability for any termite infestations
might fall on the seller until some future date. Also, you
might go to termitealert.org
for more advice, case information and companies alleged to
be repeat offenders.
Important: All prospective home buyers should
specifically request their termite inspectors to include in
the inspection report all known termite damage and previous
termite treatments in the house that the buyers are considering
purchasing. Believe it or not, the inspectors often don't
have to disclose this information unless asked for it!
Buyers should also ask the seller to produce
complete treatment records from their termite company. These
will probably contain hand sketches of the home's floor plan,
and may have little graph-like markings on them denoting trouble
spots and treated areas. If possible, ask a different termite
company to interpret the reports. (They'll probably do it
because they'll want your business.) Realize that sellers
may not even be aware of an existing problem.
But if you find that your house has a history
of "re-treatments," which means there were applications
of pesticide made in response to actual infestations, then
your termite problem was a long-existing one. A re-treatment
is not to be confused with a "pre-treatment," where
the work was preventive and was probably done before the house
was completed. The trade lingo can be confusing.
Either way, contact a real estate attorney to
interpret your contracts or any inspection warranties that
you may have and whether there is potential inspector or seller
liability under local and state laws. If the infestation is
minor, you might consider just biting the bullet and paying
for it. If it runs well into the thousands, you may consider
litigation. Or, the other party may accept mediation, which
might be your best avenue.
Good luck with this gnawing problem.
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