Does a new owner have recourse for a sluggish septic?

Q. We bought a home with a septic system about three months ago. We bought the home from an older woman who had lived there the past 24 years.

There are five people in our family and we have been having problems with the septic system ever since we moved in. At first we thought it just needed pumping out, and we did that and it helped a little, but not much. The toilets frequently back up and the sinks drain very slowly.

We called someone who repairs septic systems and we were told the field is probably saturated and we would need a new system installed. He said the cost would be between $10,000 and $15,000.

We cannot believe this is happening. We got a "Disclosure Report" from the seller stating that she has not had any problems with the septic system. We also got a report at the closing from a company that did an evaluation of the septic system and the report states that the system is operating properly.

What do we do now? We feel the seller lied to us about the condition of the septic system and we feel the company that evaluated the system did a poor job. Meanwhile, we're stuck with the bill.

We'd like to know where we stand with the seller and the company that evaluated the septic. We really do not have the money for a new septic system.

A. The absolute first thing I would do is obtain a second and then third opinion regarding the condition of the septic system. Very often, these types of problems can be alleviated by adding additional lines to the system or performing other modifications. Ask your Realtor and/or attorney for names of reputable septic contractors.

In the event that you will be required to repair or replace the septic system, the two parties you could look to for possible reimbursement of your costs would be the seller and the septic evaluator. Let's evaluate your legal situation regarding each.

To prevail against the seller, you would be required to establish that the defective condition existed before closing and that the seller knew of the problem. Although you could probably establish that the condition of the septic existed before the closing, proving the seller knew of the problem would be trickier.

You indicate that the seller was a single woman who had lived there a long time. Obviously, a single woman is not going to test a septic system the way a family of five will. One shower a day instead of five, far less use of the washing machine and dishwasher and we haven't even discussed bathroom issues. It is very possible the system operated fine for the single seller, but the condition of the system could not handle your family of five.

Unless you uncovered evidence of previous work performed on the system or other evidence indicating the seller was aware of the problem, prevailing against her will be difficult. As there are relatively few septic contractors in the area, you could try contacting each one and ask them if they have ever performed work at your property. Obviously, if you discover that some contractor has performed repairs at your property numerous times over the past few years, you would have the evidence you need to approach the seller and demand compensation for the condition of the septic.

In regards to the evaluator, you would need to establish that the evaluation was not reasonable and not up to the standards in the industry. Most septic contractors perform the same tests and in the event the contractor could prove the appropriate tests were performed, it will probably be difficult to prevail against the septic company also.

There is one possible argument against the septic evaluator. When a septic evaluation is performed on a home that has been vacant, the septic report usually provides that a re-evaluation should be performed after the house has been occupied for a period of time, usually 30 days. In these situations, the purchaser's attorney usually demands that proceeds from the sale be held in escrow to guarantee a clean report when the system is re-evaluated. You could argue the same type of language should have been included in your septic report given the obviously limited use of the septic during the seller's ownership.

• Attorney Tom Resnick's column appears every other week in Homes Plus. Send your questions to Tom Resnick, 345 N. Quentin Road, Palatine IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.