Seller Liability for Ice Dams

Who Pays?

Unfortunately, the way this Winter is unfolding, the first major (and expensive) repair facing many people who bought Twin Cities homes this Fall is for ice dams.

Can they look to their Sellers to absorb some -- or all -- of the expense?

Legal Standard

To answer the question, first revisit the two-pronged legal standard for recovery: 1) the problem existed before the Buyer purchased the home; and 2) the Seller knew -- or should have known -- about the problem.

So, if you closed on one of those balmy October days we enjoyed this Fall . . . you likely flunk #1, never mind about #2.

Pre-existing Condition

But what if the home historically suffered from ice dams, and this year's are simply the latest recurrence?

Usually, there's residual evidence that a home previously had ice dams, even after the damagehas been repaired.

Plus, a good home inspector will note the roof's pitch and design, following any roof valleys to the home's interior ceiling(s) to look for signs of past leaking (stains, fresh paint, etc.).

Seller Disclosure

Of course, at least in Minnesota, the Home Seller is obliged to tell prospective Buyers if they've previously had ice dams -- or any other roof damage -- in state-mandated disclosure forms.

Misrepresenting such material information not only risks liability for fraud (and its open-ended statute of limitations), but isn't likely to fool a Buyer who does their due diligence.

For all those reasons, it's likely that either a home hasn't previously had ice dams -- or, if it did, the issue was identified and dealt with prior to closing.

Bottom line?

Just like Buyers usually can't recover from Sellers when, post-closing, they get water in their basement after a rare, torrential rain, it's unlikely that they have recourse for ice dams following this year's record-breaking December snowfall.

Fortunately, most homeowners' insurance policies cover ice dam-related roof damage, subject to a deductible.

"What the Hell!" Showings

The (Mythical?) Serendipitous Buyer

There are Realtors who don't believe in putting "For Sale" signs in front yards because they think that the would-be Buyers such signs attract invariably . . . aren't Buyers at all.

Serious buyers, their thinking goes, proactively look online for homes that meet their criteria -- usually in concert with their agent.

While I don't happen to agree, there is something to that.

First, a definition: a "serendipitous Buyer" is a Buyer who isn't necessarily looking for a home in a particular neighborhood -- or may not even be looking for a home at all. But then they literally happen upon the perfect home, fall in love . . . and decide to buy it, then and there!

Or at least, that's how the story goes.

Such occurrences may not be as rare as Loch Ness monster sightings -- but I don't think they're exactly common, either.

Buyer "Due Diligence"

In my experience, serious Buyers are more methodical.

Specifically:

They've been vetted by a lender, and know what their budget is.

They've gotten a couple Realtor referrals, done some interviewing, and signed a "Rep Agreement" with one.

They've been studying the market for awhile, and know what's available.

By contrast, the kind of Buyer whose interest is piqued by a "For Sale" sign probably has skipped one (or more) of the foregoing steps.

Ditto for the Buyer who is working with an agent, but requests a "short notice" showing (usually defined as giving less than one hour notice to the owner -- often, a lot less).

My guess is that 80%-plus of the time, what's behind such a request is "serendipity" (they just drove by) and/or curiosity, not serious interest.