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Handling Failure to Disclose Disputes: An Interview with Jared Klein of McElhatton Foley P.C.

By Jared Klein

Tell us a little bit about your firm and the areas of law that you practice.

Our firm, McElhatton Foley P.C., is a full service litigation firm representing businesses and individuals with land use and zoning matters, commercial or business litigation disputes, adoptions/custody matters, and advocacy before state and local administrative agencies.

Our real estate practice includes zoning and land use approvals and appeals, residential and commercial foreclosure defense and lending workouts, and lender liability litigation.

What's the first thing that a new homeowner should know about possible litigation for a failure to disclose dispute?

The first thing to keep in mind is that a failure disclose may also be a failure to discovery on the part of a home inspector, and the time deadlines to take action are often very short. In Pennsylvania litigation against a home inspector must be initiated within one year of the date of inspection, which often takes places months before you formally purchase a home. As a result, the first thing a new homeowner should know is that it is essential to contact a qualified attorney immediately after discovery of any defects to ensure your rights are protected.

What are the most common failures to disclose that you've seen arise with homeowners in Philadelphia?

The most common issues we have seen relate to water incursion. While the vast majority of homeowners are honest about where they have experienced water damage, situations do arise where basement or attic water is non-disclosed, and often not discovered if an inspection takes place during a dry spell.

Another area that has come up recently is the applicability of tax abatements. The City of Philadelphia offers 10 year tax abatement for new construction, but there are administrative prerequisites to every abatement application. Situations can arise where a property is marketed as having an abatement, but a buyer discovers after closing that the abatement was not properly applied for.

Other frequent issues included the discovery of liens against a property that were either undisclosed by a seller or nor discovered by a title company or, in areas where there are row homes, disputes over the ownership or access to shared alleyways are common.

Can you briefly describe the basic rights that homeowners have when it comes to disputes with a seller?

Most purchases are done with the use of the standard agreement of sale approved by the PA association of realtors, and that standard agreement requires the mandatory mediation of any disputes arising from the agreement. This is a useful tool for homeowners, as mediation is a low cost way to resolve disputes where the financial damage is minimal.

Homeowners are also protected by the Real Estate Residential Transfer Law, which includes the Seller Disclosure and Home Inspection Laws, and provides a set of standards and legal protections for purchasers.

When should a homeowner who is having problems with their newly purchased home consult a lawyer?

As soon as possible. The deadlines for initiating legal action with regard to home purchases are short, and contacting qualified counsel as soon as a defect is discovered will preserve your options as a homeowners.

Do you have any advice to help people settle failure to disclose issues as quickly as possible?

As they say, the best defense is a good offense. In this context that means, starting off with a qualified home inspector and title agent to ensure that as many issues as possible are discovered prior to closing. If a defect is discovered after closing, taking action as soon as possible is key.

What's the best way for people to contact you and your firm?

We can be reached at 215-557-0811 or info@mcfol.com

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