Question: We recently bought a ten-acre ranchette in Mesa as a horse property. Shortly after we closed, my wife was riding one of her horses in the rear portion of our corral, and her horse stumbled and fell. After we investigated, we discovered that there was a large fissure under the soil that had only been partially filled in before being covered up with dirt. We then hired an engineer who determined that there was not only this large fissure, but also two smaller fissures under the dirt in our corral. We wished that we had been warned by either the seller or our real estate agent. The seller said that he had no responsibility to warn us because he had never lived in the property which had always been a rental. Our real estate agent said that she had no knowledge of any fissures on our property. Did somebody have to tell us?
Answer: If the seller did not know about the fissures, the seller has no personal liability to you. If the one large fissure was partially filled in, however, I suspect that the seller probably knew about this fissure because one of the seller’s renters probably required the seller to pay for the cost of repairing this fissure. Generally, the repair of a fissure is to fill in the fissure (for a big fissure, even junk cars are used as “filler”), add dirt, and then blade over the fissure. As far as the liability of your real estate agent, fissures are so common in some areas of Maricopa County that a real estate agent may have a duty to actually investigate and disclose any fissures that are not “open and obvious” to a buyer. In other words, the standard of care of real estate agents in that area of Maricopa County may require investigation for fissures. If the real estate agent has liability to the buyer for failure to investigate and disclose fissures, the seller should also have liability to the buyer under the doctrine of respondeat superior (“the master is responsible for the wrongs of his servant”).
Note: Unfortunately, even after the repair of the fissures, you will have to disclose the existence of fissures on your property when you sell your home; such disclosure could affect the value of your home.