The septic inspector inspected the wrong tank one built for an RV, and the seller let him. The actual septic system is failing. Who is responsible?

UPDATED: Oct 1, 2022

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The septic inspector inspected the wrong tank one built for an RV, and the seller let him. The actual septic system is failing. Who is responsible?

When we bought the house, the seller was required to provide a septic inspection. They did, and it said that even though there was no permit, it was fine except for the pump wasn’t hooked up to electricity. We put in our repair addendum that they had to fix the electrical, and they did sort of, but they hired a non-electrician contractor who did a botched job, like everything else in our repair addendum that we asked to be fixed Anyway, we paid to drain the tank. Soon after, the plumbing started back up and flooded our home. We then discovered our real septic talk was buried by house, the one that was inspected and drained was a tank that was built to service an RV and though it’s fairly new, it was no longer in use. The real tank is super old and failing and hasn’t been drained in many years. It would not have passed inspection. The seller had been living in the home for over 20 years, so they definitely knew where their septic tank is and allowed the wrong one built for an RV to be identified by the inept inspector. We cannot understand how the plot plan the septic inspector drew could be so inaccurate. It showed the wrong tank and wrong placement of the drainfield. In our county, if you want to build a new, permitted septic system, it has to match your neighbor’s. Our neighbors paid $25,000 for their septic tank. We don’t have that kind of money but we could get it fixed under the table for about $1,500. What do we do – sue the seller, sue the septic inspector, eat the cost?

Asked on July 12, 2019 under Real Estate Law, Oregon


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can sue the seller for fraud and the inspector for negligence. You would file one lawsuit naming the seller and inspector as defendants.
Fraud is the intentional misrepresentation or nondisclosure of a material fact made with knowledge of its falsity and with the intent to induce your reliance upon which you justifiably relied to your detriment.
In other words, you would not have bought the house had you known the true facts about the septic system.
Your damages (monetary compensation you are seeking in your lawsuit) for fraud would be either the benefit of the bargain or your out of pocket loss.
Benefit of the bargain means a defrauded purchaser may recover the difference between the real and represented value of the property regardless of the fact that actual loss suffered might have been less.
Out of pocket determination of damages for fraudulent misrepresentation permits recovery of the difference between the price paid and actual value of the property acquired.
Negligence is the failure to exercise due care (that degree of care that a reasonable home inspector would have exercised under the same or similar circumstances to prevent foreseeable harm).
Your damages for negligence  are what was foreseeably  caused by the negligence such as the costs you incurred for the septic system.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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