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Cant_move_in
Posts: 1
Registered: ‎04-30-2011
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No disclosure + no due diligence = New mortgage but no new home

[ Edited ]

Have I got a story for you...

When I closed the deal last Friday for my new condo in a 2-unit building, I had no idea my downstairs co-owner was a self-described "sex enthusiast" who engages in loud S&M "leather sex" on a regular basis. I learned this not from the seller or his agent, but via an email from the co-owner himself, which I received last Sunday night, after close.

The mere fact of the co-owner's sexual preference doesn't bother me in the least. But the possibility of it coming to the attention of my 10 year old son, whose bedroom was to be directly over the downstairs bedroom, enrages me.

By what measure does this not require disclosure? All parties to the sale knew I had a young boy who would be living with me. And I had expressed to my agent directly my concern over the possibility of an S&M dungeon in the common garage area, as that would be an inappropriate feature in a child's environment.

Neither the seller or his agent told me about the use and type of noise coming from the lower unit, though the co-owner writes that this was a topic of conversation several times between the seller and him.

The level of noise transmitted between the units has been an ongoing issue. In fact, renovation of the seller's unit was undertaken as recently as this year to help abate the noise: new sound proof padding and carpeting were added.

Despite the possibility that my 10 year old would be negatively affected by this noise type and unit use, this fact was kept from me during a full 6 weeks while I decided whether to purchase the condo.

I implored both realty companies to rescind the sale. They both said get a lawyer, we can't help.

I now have a brand new condo I cannot move into because of the risk it poses to my son.
I have 50% custody of my son. If were to move in to the condo, my ex-wife would immediately sue for full custody.
I have very little cash reserve because I paid nearly 50% down.
I have to move out of my current temporary residence on May 3. I have nowhere to go.
I have thousands of dollars of furniture and rugs piled up in my living room, purchased specifically for the unit
I cannot afford rent because of my new useless mortgage.
I literally don't know what to do or where to go.

For this I paid $27,000 in commissions?


All of this is due is to a lack of disclosure, and the lack of will to properly investigate my clear and communicated concerns. I was the only person who bid on the condo. I suspect there may be a financial motive for the non-disclosure, as the seller was eager to get out early, and requested early close via his agent.

The only people that can act quickly enough, and that have the necessary resources to fix this, as well as a moral and ethical obligation, are the real estate agencies. And they are ignoring me or dragging their feet.

I am hoping to generate enough public awareness that they will take a more responsible approach for a situation that they have created by their lack of due diligence to discover all possible pertinent disclosures.

I specifically instructed my realtor, Pat Carapiet of Paragon, to ask the sellers agents, Ken Egger and Rob Rogers of Zephyr, for access to a locked room in the common access area to determine if was possibly an "S&M dungeon." I felt a little silly asking, but also felt I needed to know with certainty that that usage was not the case where my son and I would live for years to come.

Apparently, Paragon did not communicate my clear concern to the other realtor, or Zephyr did nothing about it except ask for the inspection of the room. I have 2 emails from the realtors on this topic. My concerns in this area were clear to my agent, and the conversations on this topic with her were witnessed.

I am willing to forward the pertinent emails for your verification, if you are interested, from the co-owner, Paragon and Zephyr. You may call me with questions at the number below.

Please help me spread this story far and wide. Public opinion is the only leverage I have at this point to enact a solution, other than litigation, which will take years and thousands of dollars to come to a probable unsatisfactory conclusion.

The responsibility of disclosure is one that these realtors took far too lightly, apparently preferring to deliberately not know, despite my concern, rather than to threaten the sale with the full disclosure that was their legal, moral and ethical responsibility.

I appreciate any help you can offer.

Thank you very much.

Jack Hagerty
415-305-7772

Regular Contributor
CarnivoreLamb
Posts: 108
Registered: ‎10-28-2010
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Re: No disclosure + no due diligence = New mortgage but no new home

"I specifically instructed my realtor, Pat Carapiet of Paragon, to ask the sellers agents, Ken Egger and Rob Rogers of Zephyr, for access to a locked room in the common access area to determine if was possibly an "S&M dungeon."


I read through the above three times as it made me wonder if this post was a spoof. If on a house tour I noticed a locked room in a public access area, I would assume it was storage or circuit breakers and such. I would no more think it might be a dungeon than I would figure it to be an indoor shooting range or an FBI office.


You're in the worst city in the world if you want to complain about a neighbor's sexual proclivities, however, you're in one of the better ones regarding noise abatement laws. You might want to let your new neighbor know that should there be noise breakthrough to your unit that you will immediately call the police. If the noises sound like someone is being hurt, you will let the 911 operator know this as well. He may not be shy about his hobby but he and his playmates won't want to be interupted and questioned. He may be having fun, but to a cop, a whip looks like a weapon and handcuffs in the posession of others looks like criminal restraint.


Keep your kid away until you establish the new rules.


You can sue the agents and the seller but if escrow has closed, its your new home.


BTW: If this room is in the common access area, why is there a lock on it? Is it deeded to his condo or do you have equal access to it? If this is a common area, what he has done is a legal no-no called conversion.

Super Contributor
lysander
Posts: 214
Registered: ‎05-07-2010
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Re: No disclosure + no due diligence = New mortgage but no new home

[ Edited ]

What exactly are you asking the agents to do? They don't have the power to reverse a sale that has already closed escrow.

 

If you think the seller and/or agents failed to disclose something they knew you certainly have grounds to sue them, but my guess is it would be hard to prove in court what they knew about the neighbor. It would also be hard to prove the amount of damages.

 

BTW, it is your responsibility to investigate the property, not the agents, and the purchase agreement you signed specifically states that. You shouldn't have removed your inspection contingency until your investigation was complete and all of your concerns were addressed.

 

If you really find it impossible to move in, I'd start looking for a tenant.

 

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mrbb008
Posts: 39
Registered: ‎02-19-2011
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Re: No disclosure + no due diligence = New mortgage but no new home

I don't know if there is any duty to disclose the source of the noise or what produces the noise. You really should contact a lawyer for this. Initial consultation is free and it will give you an idea if you have a case or not against everyone and anyone.

Super Contributor
PatentAvenger
Posts: 251
Registered: ‎02-02-2010
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Re: No disclosure + no due diligence = New mortgage but no new home

 


mrbb008 wrote:

I don't know if there is any duty to disclose the source of the noise or what produces the noise. You really should contact a lawyer for this. Initial consultation is free and it will give you an idea if you have a case or not against everyone and anyone.


 

I'm not so sure of that.  I seem to recall that one line on the standard disclosure form asks about "excessive noise" or the like and the source of that noise.  Now, we can dicker about whether this type of sound meets the legal requirements to be excessive enough to warrant listing on the form, but if airplane noise and train noise are, my take is that S&M screaming also is. Just from the visceral nature of the problem and the fact that a child is in harm's way here, I suspect most judges and juries would find a duty to disclose somethjing like this.

 

The harder part will likely be proving that they knew about it, since the duty only extends to things that the seller actually is aware of.  Sounds like the neighbor may be willing to attest to the fact that they informed the seller awhile ago, and presuming the activities have been going on for awhile, it seems unlikely that they wouldn't have known about it unless they weren't living there.

 

The previous poster is right, however, you do not need to be talking to the agents about this.  They have no power to do anything.  You need to get to a lawyer ASAP.  Its the seller you sue, and the sooner the better while everything is fresh in everybody's mind (you can negotiate from a position of strength later, if you wish).  The court can have a variety of remedies available to it, including ordering the seller take the property back and give you back your money (plus cover the transaction costs, which are likely non-refundable).  He could also just order money damages while you keep the property. 

 

You may be stuck with the property, however, for an extended period of time, so you may want to consider a tenant (properly disclosing to them the noise issue, of course) or some sort of remediation steps tha you will ask to be reimbursed for.

Contributor
BlueAgave
Posts: 20
Registered: ‎05-06-2010
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Re: No disclosure + no due diligence = New mortgage but no new home

Oh my, that's really awful. Like other posters, I would:

1. get a lawyer ASAP www.realtyadvocates.com may know a good one in your area -- you have no other choice.

2. go after the seller -- particularly if he told you after the close

3. keep your paper trail on hard copies -- why didn't the agent follow up on your concerns? Was that area inspected?

4. if the area in question is common use, can't you shut that down? Get a locksmith. Or is it his bedroom?

5. Get a tenant, but careful you don't scare them away. Or get the co-owner to get a tenant...

good luck.

Platinum Super Contributor
Nanomug
Posts: 10,421
Registered: ‎05-30-2009
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Re: No disclosure + no due diligence = New mortgage but no new home

If it's a flip or REO there may not be any disclosures as the "owners" didn't live there so they couldn't know what was going on.

 

Proving what the agents knew or didn't know is not always easy.  

 

Getting a tenant sounds good.  However, the lender may object to that since the billing address will be changed.  Changing the billing address so early in the loan can be flagged as a potential breach of contract.

 

Regular Contributor
ScottUrman
Posts: 79
Registered: ‎08-24-2010
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Re: No disclosure + no due diligence = New mortgage but no new home

C.W. Nevius wrote about this today.  Looks like the original poster is publicising this as much as possible. 

Super Contributor
Paneubert
Posts: 208
Registered: ‎03-09-2010
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Re: No disclosure + no due diligence = New mortgage but no new home

[ Edited ]

From the article...

 

"My lifestyle shouldn't have anything to do with this," he said. "I could be singing Chinese opera in my bedroom."

 

I agree with that.  The source does not matter.  If it is loud enough to be a nuisance, the source does not matter.  I do not think an agent would have disclosed that the neighbor was singing Chinese opera......so why would loud sex be any different.  Noise is noise.  While the complainer says he is fine with the lifestyle of his neighbor....it is clear that he is not and the type of noise IS a big part of his expectation that it be somehow known or disclosed by the seller.

Silver Contributor
amateur
Posts: 504
Registered: ‎12-04-2007
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Re: No disclosure + no due diligence = New mortgage but no new home

[ Edited ]

Maybe your downstairs neighbor wants you to keep carpeting on your floors so that he doesn't hear you walking around.

 

And all the loud leather sex talk may be just to  be a little in your face about the carpet. 

 

Some people may not be able to say, "I'd rather you have carpets. I dislike hearing people walking around upstairs on a hardwood floor. It makes me feel like I'm living  in a box. " 

 

Or he could be hoping to buy both parts of the property for a bargain price.

 

I'd run a criminal and economic check on him. Might as well check for molesters in the neighborhood too.    

 

A ten year old isn't to be left home alone. And it's dubious to allow a teenager to stay home by themself for any length of time.  Because they become bored easily and get into all kinds of trouble.  A healthy teenager needs to be kept active and socially involved with his/her friends. 

 

Agents can't "cancel" real estate sales. They are agents and work for the owner and/or you.