Can I sue the seller for improper grading and drainage regarding a new driveway?
Question Details: I bought a home a month ago. The seller, a real estate investor who bought the home to flip, had installed a brand new driveway. At the time of inspection there was a lot of fresh hay recent grass seed and no evidence of drainage issues, despite recent rain. Now that the hay has deteriorated, water is pooling against my driveway for most of the length of it after a good rain. It is taking it several days to a week to drain. There are visible mosquito larve in the pools. The driveway elevation is 3 to 4 inches above the soil, and the yard clearly slopes downward toward the driveway. To me it seems it should have been very obvious to the contractors who graded and installed the driveway and to the seller that the yard would not drain properly. Does the seller have any responsibility to this problem or am I on my own?
The issue is, was it obvious to the seller that there was a grading, drainage, etc. problem? If it was and the seller failed to disclose the issue and/or covered it up (e.g. put down fresh seed, etc. to disguise the problem), then the seller likely committed fraud: misrepresented a material fact. That fraud would allow you to cover compensation, such as the cost to re-grade or otherwise correct the situation (e.g. install drywells or drains). But if the seller did not know, he or she is not liable: you can't disclose that of which you are not aware, so there would be no fraud. Since as the person suing (the "plaintiff") you'd have to prove you case, as a practial matter, the issue becomes whether you can prove in court with evidence that the seller was or should have been aware of the issue (e.g. show there had been prior flooding in that area which was covered up). If you can't prove your case, there is no point in suing: you will lose.