# Seller's disclosure



## lhpdiver (Jul 30, 2014)

Whenever we sold a property in the US we were required to provide a "seller's disclosure" stating whatever defects (if any) we were aware of to the potential buyer.

Does anyone know if such a thing (or something similar) exists here ? We purchased our house here in Dec 2013. Found out over the weekend there are some pretty large cracks in a 30 ft tall retaining wall which had been hidden by plant growth. This past weekend the seller wrote us and said basically not to worry that wall is very sturdy BUT it turns out in June of 2013 he had a fight with the neighbor about those very same cracks.

I have a call in to the realtor. He handled both sides of the transaction.


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## Longford (May 25, 2012)

I don't have the answer to the legal question. But, if I found myself in this situation ... I would probably speak with the _Notario Publico_ who officiated/handled the purchase/sale of the property and seek his/her advice.


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## Hound Dog (Jan 18, 2009)

You are not in the U.S. Did the seller in Cuernavaca provide you with a seller´s precise and bona fide, legally binding disclosure statement in Spanish delineating any and all defects about which the seller was aware at the time of sale? If so, did that disclosure statement specifically assert that the 30 foot retaining wall was without any structural defects to the best of the seller´s knowledge? If so, were the defects recently uncovered such that a reasonable, unsophisticated seller should have clearly known about them? I think not and even if such a document exists, which I seriously doubt, the buyer will have no recourse to the seller or real estate agent nor, except for possibly title issues about which the notario should have clearly been aware, the notario. The famous consumer protection agency PROFECO does not involve itself with these sorts of real estate matters. I am of the opinión, based on personal experience in Chiapas State, that you have no reasonable expectation of prevailing in any legal action you may be contemplating and any money you invest in pursuing legal action will have been invested in vain.

Now, I´m no attorney but write based upon having lived for 13 years in Mexico - both in the "Lakeside" community on Lake Chapala´s North Shore heavily influenced by the large expat community there and choc-a-bloc with real estate agents as a result of that large, often naive, expat contingent which the agents are there to milk and the Chiapas Highlands with very few expats (and even fewer expats from the U.S. and Canada) where real estate agents are rare indeed and those that can be found there are largely incompetent, disingenuous and crassly opportunistic. 

As it happens, we prevailed against an apparently crooked real estate investor in Chiapas and recovered money he had stolen from us but not because of the legal issues as determined by a local judge but because we thought he might be cheating the U.S. and Mexican taxing authorities by not reporting rental income on properties he owned in Chiapas and, when we threatened to report our suspicions to those authorities, he retuned our money in a nanosecond. We had no proof of anything but must have hit a nerve with that threat.

Institute legal action if you wish but if I were you I´d repair that defective retaining wall and move on - wiser and with what remains of your bank account intact rather than lining some local attorney´s pockets. Tuition in the school of hard knocks, I say. 

Good luck to you.


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## lagoloo (Apr 12, 2011)

From what I've learned, there are no disclosure requirements in Mexico like those in the U.S.
The seller is obliged to "separate the utilities" upon sale.
Even that can turn into a mess.
Considering the cost and the length of litigation here, you might be best off just repairing the wall and chalking it up to experience.


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## GARYJ65 (Feb 9, 2013)

Is the house new?
Is it in Morelos?
did you sign any contract? Could I read it?

There are many things that you could do to solve it, depending on various things


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## lhpdiver (Jul 30, 2014)

GARYJ65 said:


> Is the house new?
> Is it in Morelos?
> did you sign any contract? Could I read it?
> 
> There are many things that you could do to solve it, depending on various things


Our house is not new - but the house on the other side of the retaining wall IS. The wall is about 15 years old. The neighbors house is about 5 years old. Based on a couple of pieces of iffy information (which I need to firm up) I believe the neighbor (edit : may have) raised the level of his lot by as much as two meters to improve his view. 

The neighbor contends the wall must not have built correctly to begin with. He wants the community to repair it. The community says the issue is between us and the neighbor they don't want to know anything about it.

I just now was told there is no such thing as a seller's disclosure here but the State of Morelos does have a law (obscuro something or other) which states that the seller is required to point out significant structural issues.

We have a contract someplace because we went with a very big name real estate firm (one that is in the States as well). Is there something in particular I could look for in the contract.


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## GARYJ65 (Feb 9, 2013)

Yes, you should look or ask the real estate office about VICIOS OCULTOS
Those are hidden flaws in the construction that should be warned about or make the seller responsible if some of that happens. Unless you have signed some contract that says you buy the property as is.


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## Isla Verde (Oct 19, 2011)

GARYJ65 said:


> Yes, you should look or ask the real estate office about VICIOS OCULTOS
> Those are hidden flaws in the construction that should be warned about or make the seller responsible if some of that happens. Unless you have signed some contract that says you buy the property as is.


How would you say "you buy the property as is" in Spanish?


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## Playaboy (Apr 11, 2014)

How do you know this is an old crack? Wasn't there an earthquake earlier this year that shook your area? Maybe it was smaller then and is now bigger.


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## lhpdiver (Jul 30, 2014)

GARYJ65 said:


> Yes, you should look or ask the real estate office about VICIOS OCULTOS
> Those are hidden flaws in the construction that should be warned about or make the seller responsible if some of that happens. Unless you have signed some contract that says you buy the property as is.


Sorry my Spanish is still young - but yes - 'Vicios Ocultos' IS what my realtor said was assumed here in Morelos when we bought the house.

edit : I just got off the phone with the realtor.


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## lhpdiver (Jul 30, 2014)

Playaboy said:


> How do you know this is an old crack? Wasn't there an earthquake earlier this year that shook your area? Maybe it was smaller then and is now bigger.


The cracks (plural) were there last June and were large enough for the two owners at the time (and some other neighbors) to have a heated discussion about them - which we only found out about recently.

The quake earlier this year really wasn't that bad in this area. Just a little water sloshing in the pool.


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## GARYJ65 (Feb 9, 2013)

How long ago did you buy the house?
One other question: is that crack on the wall endangers someone or something?


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## makaloco (Mar 26, 2009)

Isla Verde said:


> How would you say "you buy the property as is" in Spanish?


In my purchase and sale contract, which was contingent on an inspection, it was stated thusly:
"... el PROMITENTE COMPRADOR por su parte se compromete (previa aceptación del dictamen técnico que se hará al inmueble en un plazo no mayor de 15 dias) a recibirlo en el estado físico en que se encuentra, manifestando conocerlo y estar conforme con el mismo."


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## lhpdiver (Jul 30, 2014)

GARYJ65 said:


> How long ago did you buy the house?
> One other question: is that crack on the wall endangers someone or something?


We bought the house 9 months ago. There is more than 1 crack and they go up about 10 feet or so. They are wide enough that there is a pile of (edit : small) lava rocks (from the other side of the wall) sitting at the base of the wall. (I was using them to fill pots with for the plants. I thought the gardener had dumped them there).

IF that wall were to come down (in a large way) it could possibly crush a large propane tank, a few large fruit trees and possibly the corner bedroom of the house. We would also likely have the neighbor's pool (and pool room) in our yard as well. That is probably worst case.

It would be a bear to rebuild that wall. I'm not even sure how it could be repaired today (if needed).


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## TundraGreen (Jul 15, 2010)

lhpdiver said:


> We bought the house 9 months ago. There is more than 1 crack and they go up about 10 feet or so. They are wide enough that there is a pile of (edit : small) lava rocks (from the other side of the wall) sitting at the base of the wall. (I was using them to fill pots with for the plants. I thought the gardener had dumped them there).
> 
> IF that wall were to come down (in a large way) it could possibly crush a large propane tank, a few large fruit trees and possibly the corner bedroom of the house. We would also likely have the neighbor's pool (and pool room) in our yard as well. That is probably worst case.
> 
> It would be a bear to rebuild that wall. I'm not even sure how it could be repaired today (if needed).


Could you build a new wall in front of it? You would lose a couple feet of yard, but the alternative of tearing the existing wall down and rebuilding doesn't sound feasible. You would have to excavate your neighbors yard behind it and it sounds like the pool and pool house would interfere with that. Would the neighbor share the cost of a second wall? If he is in danger of losing his pool, that might be an incentive for him.


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## GARYJ65 (Feb 9, 2013)

makaloco said:


> In my purchase and sale contract, which was contingent on an inspection, it was stated thusly: "... el PROMITENTE COMPRADOR por su parte se compromete (previa aceptación del dictamen técnico que se hará al inmueble en un plazo no mayor de 15 dias) a recibirlo en el estado físico en que se encuentra, manifestando conocerlo y estar conforme con el mismo."


That's exactly what "as is" is in a contract


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## Longford (May 25, 2012)

Mistake #1 was using the same Realtor who had the listing on the property. I don't know the customary real estate practices in Mexico as compared to the USA, but in the USA the principal obligation of the Realtor in a similar situation would be to the _seller_, not the buyer. But no matter the custom in Mexico, I don't think it's the Realtor you ought to be talking to about this. If the purchase was officiated by a Notario Publico then you should probably be asking the Notario Publico to explain the law/obligation/regulations in Morelos. The Realtor isn't going to want to step into the middle of such a dispute. 

Mistake #2 was not carefully inspecting the property before you closed on the purchase. It seems to me that you had that obligation/opportunity and by not doing so, at least not in respect to the wall (covered by planting or not), you waived any claim at this point. 

If the neighbor is a Mexican, I think you should expect that any money you spend to pursue potential legal action will be wasted. My observaton and experience has been that Mexican nationals almost always have the upper hand when embroiled in such disputes. The expat ends-up paying attorneys who probably will suggest paying-off a judge, and so on, and on, and on ... until the expat figures-out they've been _had_.

If, as you say, the neighbor raised the property by 2 meters (about 6 feet), which would be an extraordinary and expensive project IMO, such a project would probably have required a permit from the Municipio. A rise of that degree in elevation will likely adversely affect the drainage onto your property, and other adjoining property when it rains. If no permit was obtained then you might have some leverage with your neighbor for adding stress to your wall due to the rise in elevation of that lot and a shared cost rebuilding of the wall could be possible.

But at the end of the day, the fact of life is that you're in Mexico and Mexico has laws and regulations which are oftentimes different than we're accustomed to where we come from. The legal system is, for various reasons, tilted toward people who are from Mexico, who have family and extended family in the community who have friends working in the government who will favor them. Expats most often lack those connections and strength. Starting a fight with a neighbor can have lasting and unpredictibly negative consequences. Thinking through a resolution of the problem and/or strategy before initiating actions is hugely important IMO.

Go ahead and speak with the Notario Publico before doing anything else. Understand what your rights are and what the regulations say. More importantly, fully understand what your Purchase Contract says. 

Best of luck.


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## citlali (Mar 4, 2013)

The first thing I woud do is have an engineering firm orengineer look at the problem and write a report about it and give you a soluion on how to fix the problem with peso estimate.

Then do your homework check in the public records if he work of your neighbor was authorized and if it could have caused a problem.

Talk to a notario , show him the contract and the report and ask for his advice,

Probably the next step is to talk to the neighbor . Hopefully he did everything wrong so you can use that to convince hin to work with you on the problem.

Use a legal channel as a last recourse. Foreigners can prevail but they have to be well prepared and have an attorney that is honest and competent and a judge that is not paid off by the othe person so that is a lot of IFs
. Your best bet is to work with the neighbor or to fix the problem and be done with it.

Grow a vine again and sell the house... funny face..


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## lagoloo (Apr 12, 2011)

Basic mistake: Buying a property in Mexico which requires a retaining wall. The details are mind boggling. Things slip-slide away.
Potential mistake: being involved in a lawsuit with a Mexican national. A world of expense and grief awaits. I agree, with a grin, that there's something to be said for growing that vine big and bushy and passing the problem on to the next guy.


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## lhpdiver (Jul 30, 2014)

Today is the day of the gardener (who has been here through 3 owners over 15+ years). The wall was built before any houses in the community. The wall is on the eastern side of our property. On the western side we have another much shorter wall which kind of steps down every 3 meters or so from the north to the south. The gardener says that is exactly how the wall in question was constructed.

When the neighbor built his house the lot was a gently sloping but almost level lot. First thing he did was level off the laddering of the wall by adding lets say about new keystone brick as required each 3 meters or so. They stopped leveling the wall perhaps 10-15 feet from the southern boundary. At that point the newly leveled wall drops straight down about 6 feet to the old wall - this allowed for the creation of the 'underground' pool bath etc. Then he carved out about 6 feet of earth from the north (for his driveway/garage area and backfilled the 'raised' area of the wall.

I don't know how reliable Google earth is but if you cursor over the lot from the 2008 timeframe as well as today the elevation shown by google earth is about 5-6 feet.

The realtor was helpful. He pointed out the law for Morelos as I mentioned yesterday. We also have a civil engineer coming by to have a look at the wall from all angles. What I really need is a nice picture of that wall from about 10 years ago.

We live in the relative boonies. I don't the process of permits and such has ever been followed - but perhaps.


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## Longford (May 25, 2012)

lagoloo said:


> Basic mistake: Buying a property in Mexico which requires a retaining wall.


It seems to me that it's not a _retaining wall_ but, rather, a wall which follows and marks the property lines ... the type of wall which is commonplace throughout Mexico. I'm confused by the most recent comment of the OP mentioning that the neighbor had done something to alter the construction of the wall in question and the elevation issues. Without knowing the situation first hand I don't know how we can offer additional suggestions. And since the OP seems reluctant to examine the language of he contract with the Notario who officiated at the purchase, it strikes me the cart is being put before the horse. Anyhow, all of this sounds as if it'll be expensive to resolve. Best of luck.


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## lhpdiver (Jul 30, 2014)

Longford said:


> It's not clear in my mind if the OP was speaking of a _retaining wall_ or a wall which follows and marks the property lines ... the type of wall which is commonplace throughout Mexico. My guess, without knowing more, is it's a property wall and not meant to "retain" anything else ... other than the square footage which is in the interior of that enclosure.


No I would call it a retaining wall. The neighbors foundation sits perhaps 30 feet higher than ours. There is the top of the wall, back from which by about 15 feet is the pool, after which is the neighbors house. 

Yes - if that wall were to fall it would affect us - but it may affect him to a greater extent. His house etc are worth a fortune. Our's is small in comparison.


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## Longford (May 25, 2012)

lhpdiver said:


> No I would call it a retaining wall. The neighbors foundation sits perhaps 30 feet higher than ours. There is the top of the wall, back from which by about 15 feet is the pool, after which is the neighbors house.
> 
> Yes - if that wall were to fall it would affect us - but it may affect him to a greater extent. His house etc are worth a fortune. Our's is small in comparison.


To avoid confusion by people reading this interchange ... I edited/changed my comments which you replied to, above - as you were tryping your response. Thanks for the response. Best of luck.


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## citlali (Mar 4, 2013)

It sounds like one of these development where they do the terrasses or retaining walls and then sell the lots. Maybe te original developer had to have some type of approval from the city and maybe there is an original plan . The engineer may be able to check that.


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## lhpdiver (Jul 30, 2014)

Thank you all for your feedback.

I kind of got the answer to my original question yesterday. In Morelos there wouldn't be any sort of 'AS-IS' clause in a contract (nor seller's disclosure) because there is an implied ' VICIOS OCULTOS' law. If you are aware of a defect you need to inform the buyer.

At this point I'm going to hit the pause button on my story and wait on the thoughts from the civil engineer.


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