seller didn't disclose smoke smell in the house

Question

I bought a house 3 weeks ago, and after moving in, I found there's smoke smell in the house, like tobaccos, although I didn't notice that during the home inspection or the final walk through.

I cleaned vents, walls, ceilings, everything I can think of, but the smoke smell still persists. I even called the fire department, but they couldn't find out the source either.

Then I found many odor eliminators and air fresheners in several concealed places in the house, which I believe were used to cover the smoke smell, such that it's hard to notice the smoke smell during a half-an-hour walk through or inspection.

I also found a lot of smoke soot and dust when I was cleaning vents, and I even found a cigar in the fridge! So I'm pretty sure the seller (and/or his agent) covered up the smoke smell and didn't disclose it to me, which may have violated the disclosure law.

So what do you think I should do now? Can this be resolved in a civil manner or a legal action is needed?

Thanks!

Edit: I live in Massachusetts.

Answer 1

Disclosures are prescribed by state law. Fair housing, which is a federal concept, pertains to issues such as using prohibited personal facts to determine whether to accept an offer. (Hazardous materials disclosures are also mandated at the federal level, but are are included in state requirements which can get pretty broad).

If you are buying in Washington state, RCW 64.06.020 says what and how you must disclose. The list of disclosures is very detailed, covering title and covenants, water, sewer, structure, systems and fixtures, environment, and mobile home related. The only one of the 86 questions about smoke is whether smoke alarms are present. Thus smell of smoke is not a legally material fact that must be disclosed, in this state. The California disclosures, even longer, are here, and there is likewise no "smells bad" disclosure.

It is unlikely that any state in the US mandates such a disclosure, since it is somewhere between a subjective evaluation and a self-evident fact. Some people are very sensitive to certain smells while others do not care. The burden is on the buyer to pursue matters of personal concern (in writing!), such as whether any dog has been present in the house in the past 5 years (some people care). You have to look carefully at the response. "Don't know" is usually a safe bet, unless you actually have factual knowledge.

From what I can determine, Massachussetts is on the opposite end of the spectrum from California. There are some requirements imposed on real estate agents, and there is the federal lead paint disclosure, but otherwise it appears that nothing is mandated by law. This form seems to be used by the real estate association, and there is a question about "history of smoke/fire damage to structure". The reasonable interpretation of that is "has the house caught fire and suffered damage", so "no" from a cigar-smoker would not be fraudulent. If the intent of the question were to reveal if someone has smoked frequently in the house, that would he the question they'd ask. You can check whether you have this form and see what it says, but "smoke damage" would not normally be interpreted as meaning "smells a bit funny".

Answer 2

This will be controlled by your contract of sale. Most contracts include a clause that basically says that the buyer has inspected the property and accepts it "as is." For example:

12. Condition of Property. Purchaser acknowledges and represents that Purchaser is fully aware of the physical condition and state of repair of the Premises and of all other property included in this sale, based on Purchaser’s own inspection and investigation thereof, and that Purchaser is entering into this contract based solely upon such inspection and investigation and not upon any information, data, statements or representations, written or oral, as to the physical condition, state of repair, use, cost of operation or any other matter related to the Premises or the other property included in the sale, given or made by Seller or its representatives, and shall accept the same “as is” in their present condition and state of repair, subject to reasonable use, wear, tear and natural deterioration between the date hereof and the date of Closing (except as otherwise set forth in paragraph 16(e)), without any reduction in the purchase price or claim of any kind for any change in such condition by reason thereof subsequent to the date of this contract. Purchaser and its authorized representatives shall have the right, at reasonable times and upon reasonable notice (by telephone or otherwise) to Seller, to inspect the Premises before Closing.

As to the resolution, it is certainly not a criminal matter. If you wish to seek a civil remedy, you should consult with your lawyer. Your best bet is probably to get the seller to pay for a very thorough cleaning, but since you didn't discover it until after the closing, the chance of that seems very small. Your lawyer will have a much better sense of the probabilities than any of us will.