Bought a House With Water Damage. What Can I Do?
It’s spring - time for water entry into your house.
Maybe it was the roof. Likely it was through the siding or the basement. You have it inspected and discover that this has been an issue for a long time. A really long time. The house seller had to have known and just didn’t tell you, or worse, tried to cover it up. What are your options?
If you signed a purchase agreement that’s like most purchase agreements, you agreed to take the property “as is”. This put the burden on you to do your own inspection and to discover any potential defects in the house.
Understanding “As Is” Clauses in Real Estate Contracts
An “as is” clause means that you can’t recover against the homeowner for simple negligence. You have to prove that they intentionally defrauded you in order to recover any money against them.
This can be a fairly high burden to meet. You can usually recover under one of two theories; Fraudulent Nondisclosure, or Fraudulent Concealment. The elements overlap slightly, but you will need to prove one or the other in order to recover against your home seller.
Fraudulent Concealment: What You Must Prove
To prevail on a claim of fraudulent concealment, an injured party must establish:
The seller actively hid a significant fact about the property.
The seller knew this fact was being concealed.
The concealment was done with the intent to mislead you.
You relied on that concealment when deciding to purchase the property.
You suffered harm or financial loss because of that reliance.
Goddard v. Stabile, 185 Ohio App.3d 485, 2009-Ohio-6375, 924 N.E.2d 868, ¶ 32 (11th Dist.).
Fraudulent Misrepresentation and Nondisclosure
The elements that constitute the basis for a claim of Fraudulent Misrepresentation or nondisclosure are:
The seller made a statement — or failed to disclose a fact when there was a duty to do so.
The fact was important to the transaction.
The statement was false, and the seller either knew it was false or acted with reckless disregard for the truth.
The seller intended to mislead you into relying on that false statement or omission.
You reasonably relied on the statement or omission when making your decision.
You suffered harm or financial loss as a direct result of that reliance.
Kimball v. Duy, 11th Dist. Lake No. 2002-L-046, 2002-Ohio-7279, ¶ 23; Cardi v. Gump, 121 Ohio App.3d 16, 22, 698 N.E.2d 1018 (8th Dist.1997).
If there is an “as is” clause in the agreement, you cannot recover for fraudulent nondisclosure: Massa v. Genco, 11th Dist. Lake No. 89-L-14-162, 1991 Ohio App. LEXIS 867, 5 (Mar. 1, 1991); Arndt v. P & M Ltd., 11th Dist. Portage Nos. 2007-P-0038 and 2007-P-0039, 2008-Ohio-2316, ¶ 81, citing Brewer v. Brothers, 82 Ohio App.3d 148, 151, 611 N.E.2d 492 (12th Dist.1992). An "as is" clause, however, does not preclude causes of action for Fraudulent Misrepresentation or Fraudulent Concealment.
Waleszewski v. Angstadt, 11th Dist. Lake No. 2002-L-113, 2004-Ohio-335, ¶ 23; Brewer at 151 ("an 'as is' clause does not bar a claim for 'positive' fraud, a fraud of commission rather than omission").
The Doctrine of Caveat Emptor: Buyer Beware
As a result, you will likely need to prove affirmative fraud. Otherwise, the doctrine of caveat emptor, or “buyer beware”, will bar any recovery.
The doctrine of caveat emptor (“buyer beware”) generally prevents a buyer from recovering for structural defects in real estate when all of the following are true:
The defect was visible or could have been discovered through a reasonable inspection.
The buyer had a full and fair opportunity to inspect the property.
The seller did not commit fraud.
Goddard, 2009-Ohio-6375, at ¶ 25, citing Layman v. Binns, 35 Ohio St.3d 176, 519 N.E.2d 642 (1988), syllabus.
For concealment, this means that you must put forward actual evidence of concealment. Kaye v. Buehrle (1983), 8 Ohio App.3d 381. However, it is well-stated that in the sale of real estate, there will be a finding of fraudulent concealment when a vendor does not reveal to a buyer sources of peril of which he knows and which are not discoverable by the buyer.
Klott v. Associates Real Estate (1974), 41 Ohio App.2d 118, 121.
Nondisclosure will become the equivalent of fraudulent concealment when the duty to speak arises in order to place the other party on equal footing.
Mancini v. Gorick (1987), 41 Ohio App.3d 373, 374, citing 50 0hio Jurisprudence 3d (1984) 431, fraud and Deceit, Section 78.
In short, unless you had a very unusual contract which had no “as is” clause and had no inspection contingency, you are going to have to prove that your house seller actively concealed a defect, and that you were never on notice of the defect.
Key Takeaways for Homebuyers Facing Water Damage
Buying a home only to discover hidden water damage can be overwhelming, especially when legal complexities arise. While “as is” clauses and caveat emptor often limit recovery, you may still have options if you can prove fraudulent concealment or misrepresentation. These cases require strong evidence and a clear understanding of Ohio real estate law.
If you suspect fraud or concealment, don’t navigate this alone. Contact N.P. Weiss Law today to discuss your case and protect your investment. Our team is here to help you understand your rights and pursue the justice you deserve.
Book a paid consultation now or contact our office to see how we can help.
About the Author
Nicholas Weiss is the founder and supervising Attorney of N.P. Weiss Law, serving clients across Northeast Ohio in real estate, family law, and estate planning & administration. He is committed to helping property owners, businesses, and families navigate legal challenges with clarity and confidence. Learn more about Nicholas Weiss.
This article and the accompanying video are provided for informational purposes only and are intended as general guidelines. Nothing in this content creates an attorney-client relationship or constitutes legal advice on which you should rely without consulting your own retained attorney. If you have questions about your specific legal situation, please contact a licensed Ohio attorney for personalized guidance.
