Potable water disclosure (Arvada, Evergreen, Ovid: sales, real estate, lawyers)

[BLuedke]

Long story short: We recently bought a home in Arvada with a Well. After moving-in, the family started getting sick and we all felt the water tasted odd. We had the water tested and it came back (both in a general water quality and bacteria test) as unsafe for human consumption (numbers actually off the charts bad). We have had (3) companies come in to recommend fixes for the test results. Costs are ranging from $15,000 - $20,000+ to fix the water. Colorado Statutes require disclosure of a POTABLE water source. Below is copied exactly from our disclosure. My question is whether or not we have legal recourse to go back to the Seller's on this issue? Add to the fact that the Seller's have admitted (last week) that they did not drink the water. Last note is that we did ask for all Well permits and maintenance that had been done on the Well in the past 10 years. However, we relied on the property disclosure for potable water knowing Colorado law requires potable water disclosure. Do we have a case or are we in a "Buyer Beware" situation?


6 Type of water supply: Public Community Well Shared Well Cistern None
If the Property is served by a Well, a copy of the Well Permit Is Is Not attached. Well Permit #:
Drilling Records Are Are Not attached. Shared Well Agreement Yes No.
The Water Provider for the Property can be contacted at:
Name: Address:
Web Site: Phone No.:
There is neither a Well nor a Water Provider for the Property. The source of potable water for the Property is [describe source]:
Domestic Well which provides for livestock and watering of landscaping.
SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND WATER. YOU MAY WISH TO CONTACT
YOUR PROVIDER (OR INVESTIGATE THE DESCRIBED SOURCE) TO DETERMINE THE LONG-TERM SUFFICIENCY OF THE PROVIDER'S
WATER SUPPLIES.

[SkyDog77]

You need to call an attorney with experience in such matters and not rely on an Internet forum for advice on something this important.

[skins_fan82]

Originally Posted by SkyDog77

You need to call an attorney with experience in such matters and not rely on an Internet forum for advice on something this important.

Agreed. But it sounds like you've got one hell of a case.

[sunsprit]

You are covered in the mandatory Colorado standard residential listing and buyer's contracts.

They specify that the seller & their agents have a mandatory obligation to disclose "any known" material defects of a residence.

From your post, it appears that the sellers KNEW or had reason to believe that there was a problem with their residential well. So it was required by the real estate transaction laws of Colorado to disclose this defect of habitability to a buyer. Even if the seller didn't disclose this problem to their listing agent, it was the professional responsibility of the agent to know the problem and disclose it to you. In Colorado, it is typical for a listing agent/agency to have a listing disclosure document to be filled out by the sellers; this is where they disclose known problems such as non-functioning items, electrical, structural, bentonite soil, or any other defect in the property and it is part of their listing agreement supporting documents. This stuff ain't trivial, a seller cannot knowingly fail to disclose a defect in the habitability of safety of a residence. AS well, an agent has a fiduciary responsibility to perform as a "professional" in the biz to investigate and disclose anything that appears to their level of expertise to be a possible area of concern; they are held to the standard of "known or should have known" of the problem.

This stuff ain't trivial, it is part and parcel of the practice of real estate sales in Colorado. It is why agents are bonded for professional performance and licensed to do business. And it's why when such known problems are revealed post closing and the agents were paid for their professional performance, most agents/agencies will be scrambling to "make things right". Their risk is otherwise losing their license, fines, and liability for curing the defect(s). A house sale where the new owners are at a serious health risk is an especially egregious violation under the law.

For you agents from other states out there on the forum, please note that Colorado requires the use of their Residential Real Estate contract form because they consider this part of the practice of licensed residential real estate sales as "practicing law". Unlike many other states where RE sales contracts can vary as to these items and lawyers are generally part of a residential sale process, Colorado is absolutely specific as to the contract that shall be used. It is a "fill in the blanks" form for essential details for a legally binding sales contract. If, in fact, the sellers knew that the well was not usable, this would have to have been disclosed on that contract. IF it was not disclosed, then the agent and seller have a big problem.

At this point, you need to contact your RE agent and let them know of the problem. IF the agent is "on the ball", you will be hearing from the seller's agency almost immediately to verify the problem and take corrective action. Otherwise, you have but to mention that you'll be "taking the issue to the Colorado Real Estate Board" to file your complaint which will usually spur a seller's agency to action.

In the worst case scenario if the seller's agency is non-responsive to your problem, you would contact a RE lawyer. They'll be happy to assist you with such an obvious case of non-disclosure of a material defect with the residential transaction. For the moment, however, unless you don't get a meaningful response immediately from the seller's agency, this is a very last resort. Keep in mind that your agent who was paid by the seller for their professional services in "on the hook", too. This is the stuff of their worst nightmares in the biz. It's one thing to have minor structural issues (such as bentonite soil problems with a structure), but it's another thing entirely when it's a health issue with a residential sale.

PS: Know that it would be quite an omission of the seller's agent to have not required a water quality and performance report as part of their listing documents to be disclosed to the buyer. If your sales contract package didn't have a new well report as part of your closing documents showing the well was producing potable water, the seller's agent really messed up ... big time. Of course, if they do have such a report ... then it's a whole new set of circumstances than what the OP described.

[emm74]

I can't tell from what you typed which check boxes were marked off, so it's not clear exactly what was disclosed. But I do agree that you need to speak with an attorney who can examine all of the documents and get answers to more questions than you should discuss publicly here so that they can give you accurate and proper advice.

[mic111]

If you are in Arvada you could be close to Rocky Flats where the nuclear contamination is seeping into the ground. I suspect you will always want to have bottled water for drinking and cooking in that house.

Instead of spending large dollars on fixing the well, investigate the cost to get hooked up to the public water system and only using the well for outdoor watering.

An attorney should be helpful for seller recourse but also look hard at going after your realtor. They should have been advising you on these issues such as testing the well, helping you avoid a well situation in Arvada, and seeing the statement about the potable water being used only for landscape and livestock. The sellers, to cover themselves legally, should have had in large capital type a statement that the well wasn't potable for human consumption. That was the ethical thing to do. But the question will be if the statement regarding the use for livestock and landscape gets them off the hook legally. I hope not.

[eatsDEN]

Originally Posted by mic111

seeing the statement about the potable water being used only for landscape and livestock.

that was what I noticed also in the OP...


I would also suggest contacting an attorney for further evaluation.


best of luck!

[Dreaming of Hawaii]

To the OP: Is this well the property's only source of drinking water? Did you or your agent ask for any water quality testing information during the due diligence process?

The OP's summary of events was a little confusing. I, too, wondered about the "only for landscape and livestock" wording. If the well was intended only for those purposes, then where does the drinking water come from?

Water is heavily adjudicated in Colorado. I suggest that the OP contact Colorado Department of Public Health and Environment Drinking Water Division, or at least start by going to their website. OP, you may need to talk to a water attorney before taking any action against your realtor.

[2bindenver]

There are two places for source of water disclosures in Colorado contracts - The Seller's Property Disclosure (Section J Item #6) OR the Source of Water Disclosure.

You should have had the option to test the water before your Inspection Objection Deadline.

Call water testing companies in Evergreen. I have never heard that it would cost that much to shock a well.

[sunsprit]

I see above that there's some ambiguity about the well only being used for landscape and livestock purposes.

What's missing in that line of thinking is the apparent lack of disclosure by the seller that the well was a health issue for the residents.

Just off the 'phone with my Colorado agent re another property, and I asked him if he'd ever put a property on the market without having a current well/septic inspection report and specifying any specific tests such as the known area around Rocky Flats contamination issues.

He was adamant that he wouldn't even put the property on the market until the test results were in hand. Same thing for an inspection for problems in the areas with known bentonite soil issues in the region. These are both "deal breakers" for him with too many potential problems to come back and haunt him if they aren't disclosed/addressed up front.