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Question DetailsAsked on 7/14/2016

Seller did not disclose chimney was in bad state. Can we do anything about it?

I bought a house recently and we are getting ready to move in. Before moving in we are doing some upgrades and cleaning. We hired a chimney guy to come clean the creosote buildup and we were told our chimney has had multiple fires and the chimney is collapsing. Is there anything we can do to go back to the seller and have them pay for the damage? The chimney problem was never disclosed to us. This would have been a deal breaker and I feel cheated. Is there anything we can do?

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Sorry to hear about your buyer's remorse - sounds like a potentially significant issue.

Assuming your state requires a property disclosure form that should reveal this sort of history:

1) IF chimney fire did occur - and I am not at all confident that a chimney sweep could definitively say that there had been multiple chimney fires - that there had been a creosote fire yes, definitively saying there had been multiple fires - I think that would be hard to prove.

2) IF there had been chimney fires (which you might or might not be able to use fire department record to prove IF the fire department had been called), IF the owner felt the problem had been solved - damage was repaired or inspected and inspector said there was no damage (which is quite commonly the case with flue creosote fires in many types of chimneys) then except in states where the disclosure statement specifically requires that ANY fire or flooding be disclosed (even if repaired afterwards), generally if an issue or failure is fixed then it does not have to be disclosed on the disclosure statement. Also, depending on the disclosure the Seller received when HE bought the house, if the fires preceded his occupancy then he might not have known about them.

3) The chimney condition might have been unknown by the Seller - many people have serious chimney damage or heavy creosote buildup but if they do not have a chimney sweep clean it never know about it. I remember seeing one chimney with over 6 inches of creosote and soot buildup all around in the flue, blocking it over 75% in cross-sectional area - yet because the owners only had very little "recreational" log fires (using junk and green wood, causing the problem) that never got very hot or large, never had a chimney fire and never knew they had a problem until the smoke starting backing up in the firebox.

4) I would review the disclosure statement, and state law about what has to be included in it, and also if anything was said about the chimney in any home inspector report you had done, and then maybe talk to your realtor on the deal about his/her thoughts on it.

5) Generally, pretty hard to go back against an owner on things like this, because you have to prove first that he knew about it AND knew it was in bad shape (not just thinking it was normal wear and tear), AND that it had to be disclosed under applicable law (or in some areas by MLS standards, which might or might not be legally binding on a seller unless made so in the contract). Just proving he know about the condition would be very tough in and of itself in most cases, especially if the chimney fire did not occur while he lived there - or maybe did but he did not know about it, because commonly they burn themselves out in a couple of minutes and the owners do not even know about it unless it gets hot enough to set fire to the house or is so severe it sounds like a jet engine. I have told two neighbors about chimney fires I have seen in progress - both were sitting in the same room as the fireplaceand did not know there was a chimney fire going on.

6) If you had a home inspection opportunity (almost always do by contract, to find problems and amend your offer or have contingency repair items to be done before closing), then your failure to have the chimney specifically inspected could be taken as a failure on your part, provided he disclosed items he knew of as required by law or contract. it is common to require a chimney cleaning and inspection (especially on "natural lined" chimneys as opposed to one with metal liners) as a contingency item which cost is sometimes split between Seller and Buyer because the inspection cannot be properly done until the chimney is cleaned.

7) Generally, disclosures are only required on owner-occupied sales - so if he did not live in the house for the required period of time in the last so many years - say he was renting it out or it was inherited or he was an executor or trustee or such - generally disclosure statements are not required in such cases.

Check contract and inspection report and any disclosure statement, talk to realtor, then if you really think you have a case talk to an attorney specializing in real estate law. But generally, once the sale is closed it is presumed (or expressly stated in the contract) that you accepted the house in the then-current condition (after any contract-required contingecy items were taken care of before closing), so your recourse against the seller is pretty limited. Generally, the courts take a dim view of buyers trying to go back against sellers unless they intentionally failed to make required disclosure of things that they definitely knew about AND had to be disclosed. Most of the post-sale recourse actions I have heard of being successful related to undisclosed legal encumberances on the house - unrecorded liens or contractor debts, known but undisclosed property line infringements, known but undisclosed easements or trespasses, etc.


One other thing - bear in mind the possibility that this chimney guy was trying to create work and that the chimney is not actually collapsing or only needs a bit of repair - before taking major steps regarding this I would get a second opinion on it - or maybe bids from a couple of Masonry contractors specializing in chimneys for instance, to determine exactly how bad the situation is and what the repair might cost. Might be fairly easily repairable or only need a new liner or such [so maybe $1000 or so or less], rather than a major or total rebuild [so quite a few thousand $ if masonry or brick] as the phrase "collapsing" implies.

Answered 2 years ago by LCD

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