COLUMN: Seller neglects to disclose moving driveway

Q. I purchased my home more than a year ago in a gated community. I discovered recently that my driveway has risen about two inches and has cracked pretty badly.

I talked to the person who poured the driveway when the house was built in 1994. He said the original owner had a similar problem and that he came back and fixed it with the cost being shared with the homeowner.

I checked my escrow records and do not find where this problem was indicated. Can I go after the former owner to fix the driveway?

A. Your question raises several questions. When was the repair made? If it was made back in 1995, for example, did the seller need to disclose that there was a problem? If the problem did not continue to exist when the property was sold, did the seller need to disclose the repair?

When you contacted the person who poured the driveway, did he tell you why the problem occurred in the first place? Was it a result of the materials used or the methodology? Was there a foundation problem that still exists? Do you have any landscaping such as nearby trees whose roots are causing the upheaval?

On a typical seller's real property disclosure form, there is a section titled "land/foundation," which typically asks if you are aware of movement or upheaval that has occurred on the property. Note the wording "has occurred on the property." Another question in this category is whether the seller is aware of defects or problems relating to the foundation.

The seller should have informed you that there had been a problem that he believed was resolved. Please note that a complete disclosure form does not constitute an express or implied warranty regarding any condition of residential property.

According to NRS 113, if a seller conveys residential property to a buyer without complying with the requirements, the buyer is entitled to recover from the seller triple the amount necessary to repair or replace the defective part of the property, together with court costs and reasonable attorneys' fees.

An action to enforce the provisions of this law must be commenced no later than one year after the buyer discovers or reasonably should have discovered the defect or two years after the conveyance of the property to the buyer, whichever occurs later.

This law became effective January 1996.

If you can show that the problem is a result of a construction defect, there is a slight possibility that you would be covered under NRS 11.204 pertaining to latent defects. A latent defect is one that was not subject to discovery on a reasonable inspection. In this case, when the initial buyer and the developer did their inspection, any upheaval would probably not have been visible. The developer could be held responsible for the repairs.

Q. I subscribe to a security service, which supplies a sign stating that my property is protected by a security company. My association will not allow me to post this sign. Your input would be appreciated.

A. Many associations have explicit sign restrictions. Signage pertaining to security can be tricky. While enforcing the association's regulations by not allowing your sign, the board could be placing itself in a liability situation. If the house is broken into and especially if anyone is injured, it could be argued that the board was partially responsible based upon the assumption that such a sign would deter crime.

Your board should consult its legal counsel and their insurance agent to confirm their policy on restricting security signs.

Questions for Barbara Holland may be sent to Association Q. & A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759.

Barbara Holland, Certified Property Manager, is president and co-owner of H&L Realty and Management Co. She is a member of the Institute of Real Estate Management and is the author of two books on the subject. Holland is a past president of the Greater Las Vegas Association of Realtors.

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