Do you know about the Geotechnical side of
Due Diligence & Homesite liability?
Jim Glomb Geotechnical & Environmental Consulting, Inc.
The legal aspects of hillside property transactions have changed over the past few decades. The current legal trend in the home arena is towards protection of the consumer. If a homeowner has suffered damage due to earth movements; such as landsliding, foundation settlement or drainage problems; they typically file a legal claim against everyone involved in the construction of the homesite, from the builder, project engineer and geotechnical consultant as well as the realtor.
In the case of an action performed by a homeowner, such as grading or modified drainage that results in damage to a homesite the homeowner initiating the action would be liable. It would be legally deemed an act of “negligence”. In modern law, “reasonable care” also comes into play and those involved in property development and sales need to take note for their own best interest. These multiple legal components are compelling reasons for the homeowner, purchaser and realtor to educate themselves about the geotechnical conditions affecting the existing real estate and the potential effects of any planned projects.
There are several benchmark court cases defining residential homesite liability.
With the case of Sprecher v. Adamson (1981) the inaction of a property owner to reinforce his property and prevent landslide movement onto his neighbor’s land proved to be a turning point in how un-altered properties were viewed within the courts. Owners were now bound to “reasonable care” of their property with regards to how it affected neighboring land.
The Adamson Company property land slippage was along the pricey Malibu seaside and Old Malibu Road and it was long known for its active ancient slide complex reaching towards the ocean and neighboring peninsula properties. Unlike previous views on geotechnical movements of unaltered property, the consumer rights become more significant with this ruling as the courts found Adamson’s lack of reinforcement of his property to not comply with “reasonable care” that his property would eventually slide onto the neighboring Sprecher property.
Another case which largely affects the world of the realtor with their resulting “due diligence” forms was Easton v. Strassburger (1984). California Appellate Court expanded the duty of realtors and the grounds for realtor negligence in selling distressed or damaged homes.
The Strassburgers owned a home in an exclusive area of Contra Costa County. The home was originally constructed with a cut-fill pad without sufficient keying and benching of fill resulting in multiple slides and “repairs” and partial fixes to the problem. The Strassburgers sold the property to Easton in 1976 and the new home owner dealt with subsequent slides and settling from 1976 through 1978.
Easton filed suit against the Strassburgers, contractors, realtors and the other parties involved. The courts found all parties negligent.
The realtors were deceived by the Strassburgers, just as Easton was, but the appellate court upheld the decision. The court found that the realtors, as licensed professionals have a duty to disclose what they know, but also what they know as professionals should know, making “reasonable use” of their knowledge, skills and experience. In the courts eyes, the realtors ignored major “red flags” such as presence of fill, uneven floors, and erosion netting on slopes near the house. The courts found that realtors have a duty to further investigate these obvious signs of home distress and disclose them to the property buyer.
In conclusion, the concept of "reasonable care" has become more important in earth movement cases as the grounds for negligence have increased. The determination of what is reasonable is for a jury to decide, based on expert testimony. A geotechnical expert is needed to create a descriptive model of what caused the earth movement. A geotechnical investigation may be the proper course to establish an appropriate level of due diligence if you are processing the purchase or sale of a property with signs of distress.
Jim Glomb is a Geotechnical & Environmental Consultant for the North Bay with over 30 years experience in his field.
Download pdf "Know Your Geotechnical Due Diligence"
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