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Voyle Glover has been a member since February 19th 2013, and has created 8 posts from scratch.

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Can I Sue if the House I Bought Has a Leaky Basement?

What if the Basement Leaks Years After I Bought the House?

stick_figure_sit_in_question_mark_400_clrThis year’s heavy rain has caused many Lake County, Indiana real estate buyers to find their basements full of water or walls that seep water. As many people have discovered, a leaky basement can cause thousands of dollars of structural damage and can cause things stored downstairs to be destroyed. If you do not fix a leaking basement, the problems will only get worse. Unfortunately, fixing a wet basement can be a devastating expense for a home buyer. But, suppose you, the home buyer, does not discover this until after you’ve bought the home? What if it is over a year? Do you have any recourse against the Seller of the home? Short answer: perhaps. You will need to talk it over with an experienced Indiana attorney who is knowledgeable about these kinds of cases to know whether or not you have a case.

In most cases, a seller of real estate in the state of Indiana place upon the sellers a duty to disclose defects in the property that they knew about, including a leaky basement. Indiana law requires most sellers to complete a disclosure form that asks if there are moisture issues in the basement or crawlspace. If the seller claims there were no water issues, then later you encounter water issues, and the seller knew about the problem, you may have grounds for a lawsuit to make the seller pay to repair your leaky basement.

Contact a Lake County, Indiana attorney to protect your rights and your home.

What Causes a Basement or Crawlspace to Leak?

Although there are many ways that water may enter your basement, the two main ways are condensation and leaking. When it rains, the excess water that the soil cannot handle causes the water table to rise. The extra water causes a force called “hydrostatic pressure” to push against the sides and floor of your basement. Over time, this pressure can cause your basement to crack or allow water to seep through an old or subpar foundation. This is especially true in northwest Indiana because clay soil does not drain very well.

Consequences of a Wet Basement

Water is a basement’s enemy and can lead to mold, rotted wood, cracked foundations, and the loss of personal property. A small crack can quickly grow, damage your foundation, and allow moisture to enter your home. Once moisture (or a flood) enters, the water may destroy flooring, drywall, wood and other parts of your home. In some instances, expensive or priceless belongings may be destroyed. Worse yet, the moisture makes your home more susceptible to termites and dangerous mold. Ultimately, it devalues your home and can make it more difficult to sell later.

Your Legal Rights if You Bought a Home with a Leaky Basement

You may have a right to be compensated for the cost of repairs if you bought a home with a leaky basement. Indiana law allows a seller to sue if there was “fraudulent misrepresentation” in the seller’s real estate disclosure. In order to prove this, sellers must be able to prove five specific things:

  • The sellers made false statements of past or existing important facts
  • The sellers made such statements knowing them to be false or recklessly without knowledge as to their truth or falsity
  • The sellers made the statements to convince the buyers to act
  • The buyers justifiably relied upon the statements
  • The buyers suffer injury (this can include structural or other property damage)

Although every case is different, it is often difficult to show that the seller had actual knowledge of the wet basement. If you cannot prove the seller knew about the leaking basement, you will not be able to get compensated for your loss. If you believe you might have a case, you should work with an Indiana lawyer to evaluate the facts, investigate your case, and put the five pieces together to get you the compensation you deserve.

Contact a Lake County, Indiana attorney with experience in leaky basement cases to assess your case and find the clues that the seller may have known about the problem. Even if there isn’t a “smoking gun,” an experienced attorney will know the common signs of a cover-up, where to look for evidence, and what steps to take in order to investigate and pursue your case.

Protect your Home and Family Today

You should not ignore a wet or leaking basement. A wet basement can threaten your health and cause tens of thousands of dollars of property damage. While repairs may be costly, the costs of inaction can be much higher. Many local companies will visit your home and provide free estimates. Investigate your options and take actions.

Protect your home, your belongings, and your family’s health by contacting an experienced northwest Indiana basement repair company and a Lake County Indiana attorney today. You may be able to receive compensation for your repair costs and other damages, including attorney fees.


A Brief Background of the Law

Law on Leaky BasementsOur courts have long held that a ” purchaser has no right to rely upon the representations of the vendor as to the quality of the property, where he has a reasonable opportunity of examining the property and judging for himself as to its qualities.” See Cagney v. Cuson, 77 Ind. 494, 497 (1881); see also Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind.Ct.App.2009); Pennycuff v. Fetter, 409 N.E.2d 1179, 1180 (Ind.Ct.App.1980).

If a seller undertakes to disclose facts within his knowledge, he must disclose the whole truth without concealing material facts and without doing anything to prevent the other party from making a thorough inspection. For, if in addition to his silence, there is any behavior of the seller which points affirmatively to a suppression of the truth or to a withdrawal or distraction of the other parties’ attention to the facts, the concealment becomes fraudulent.

Ind. Bank & Trust Co. of Martinsville, Ind. v. Perry, 467 N.E.2d 428, 431 (Ind.Ct.App.1984). See also Lyons v. McDonald, 501 N.E.2d 1079 (Ind.Ct.App.1986); Vetor v. Shockey, 414 N.E.2d 575, 577 (Ind.Ct.App.1980).

Pursuant to Indiana Code section 32-21-5-7(1) (2002 & Supp.2009), sellers of certain residential real estate are required to provide prospective buyers with a form adopted by the Indiana real estate commission disclosing known conditions of the property including:

(A) The foundation.

(B) The mechanical systems.

(C) The roof.

(D) The structure.

(E) The water and sewer systems.

(F) Additions that may require improvements to the sewage disposal system.

(G) Other areas that the Indiana real estate commission determines are appropriate.

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What if There is No Last Will & Testament?

What if there is no Will?Death Without a Will

Unfortunately, it is all too common for a mother or father to die without having made a final Will.  It can create some difficulties for the heirs. It can also bring about some serious family conflicts.

In Lake County, Indiana, the probate system is fairly typical of those systems across the country. (Probate is that legal system consisting of rules and laws which govern the handling of the estate of those who die, with or without a Last Will & Testament.

The essence of any probate systems is to provide a set of rules for distributing the assets within the estate of those who die.
While every state’s laws differ in some respects, at the core of all the probate system is a set of rules that tell the citizens who has to file a petition to open an estate, how to file, where to file, and what documents must be given to the court.

Normally, an estate is opened by the filing of a Petition with the Probate Court in the County in which the decedent lived. For example, if the decedent lived in Lake County, Indiana, then the Petitioner would file with the Lake Circuit Court, or one of the Superior Courts in Lake County. That Petition asks that the Court appoint a particular individual to the role of Personal Representative, or in some jurisdictions, the Executor (male) or Executrix (female). Notice of the Petition is given to the heirs as well as to known creditors. A filing fee is required.

If No Will, Who Can Serve as Personal Representative?

If there is a Last Will & Testament, that document will name the Personal Representative that the decedent wanted to serve. However, if there is no Will, then anyone can Petition to become the Personal Representative. Sometimes, there are competing Petitions where two or more persons wish to be the Personal Representative. The Court then has to hold a hearing after which it will determine who is to serve. The primary choice will be a close relative of the decedent. A son or daughter would be preferred over an aunt or uncle, or even a brother or sister. But, there are various factors that come into play so it is not always the closest relative who will be selected by the Court.

What are the assets?Once the Personal Representative is chosen, that individual will have the responsibility of collecting all of the assets of the decedent and making an inventory. Also, the Personal Representative will be need to go over all of the papers of the decedent to find bills, to do final taxes, locate bank accounts, insurance records, and determine exactly what the decedent owned at death. He or she will file a list of that inventory with the Court.

Also, the Personal Representative must make every reasonable effort to locate the heirs of the estate. Indiana, like every other state, has a statute that specifies the order of inheritance. For example, if a parent dies and there is no spouse, then if he or she had children, then those children are the sole heirs. If there are no children, then the Court will look at the statute and began a process of selecting those next in line to inherit.

One thing that absolutely must be done where someone dies without a Last Will & Testament is to open an estate, assuming there are assets. However, it may be possible to avoid opening an estate if the total assets are at the statutory minimum so as to qualify it as a “small estate,” after payment of funeral costs and other qualified bills. In such case, an affidavit may be sufficient. But, there are some circumstances where, even though the estate qualifies as a “small estate” under the statute, an estate should be opened. Sometimes, to protect the person handling the estate, he or she may want an estate opened. It can solve some problems that may arise and gives some closure that otherwise may be lacking. For example, if  the decedent had real estate, then it is usually a good idea to open an estate.

Bottom line: If you have a loved one who died without leaving a Last Will & Testament, definitely call a lawyer and get some advice as to how best to proceed.


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Do I need a lawyerIn the vast majority of instances, real estate sales and purchases go smoothly for the buyer and seller of realty.

Real Estate is a tightly regulated industry in most states. Indiana has a system that runs pretty smooth most of the time and in the Lake County region, most real estate deals are handled without incident. Real Estate brokers and agents have some pretty stringent training that they have to go through, so an experienced agent or broker is going to know the ins and outs of the procedural end of real estate transactions.


However, the difference between an agent selling real estate and a lawyer is that the attorney is trained to spot legal issues that can spell the difference between your quiet enjoyment of your purchase and a legal nightmare waiting to happen.

A case in point. Buyer purchases a lot in a subdivision. The intent was to move his manufactured home onto the lot. After the deal, the Buyer moved the home onto the lot. Homeowners in the subdivision sued him, arguing that there was a restrictive covenant that stated “no structure shall be moved onto any of the said lots.” He coSad buyer of real estateuld only “build” a new structure.

The homeowners won. The court held that the negative, or restrictive covenants are not generally favored by the law, nevertheless, they can be enforced.

An attorney at the real estate closing would have demanded to see what, if any, covenants ran with the land and then made sure a definitive understanding of the covenant was rendered. If necessary, the lawyer would have insisted, to his client, that before he completes the transaction, that he obtain a release from every homeowner.

There are a myriad of instances where a buyer of real estate can get “bitten.” Many of them are obvious. Many are not.
The realtor’s job, unless she actually represents the Buyer, is not hired to “protect” the Buyer. She or he is not a lawyer and has no legal obligation to look after the Buyer’s best interests. Real Estate agents often do look after the best interests of a Buyer, but typically it is to insure that all the proper procedures are followed, things are signed correctly and timely, and other general things. She will often advise a Buyer of the obligations under the Agreement, but technically, the Real Estate agent is not bound to advise a Buyer as to the legal aspects of an agreement.

Questions that may typically arise in the attorney’s mind are: Are there any written covenants that run with the land? Are there any prescriptive easements? Was there a prior use of the realty that would give rise to a potential claim by the government, later? Does the owner have good title?

These, and many other such questions are often running through the lawyer’s mind when representing a client in a real estate transaction.

I  once had a client who’d bought a house on a land contract. I was not involved in that transaction. After 10 years of paying on the contract, they ran into some financial difficulties and as a result, the Seller brought an action against them to foreclose. I entered the case and the other attorney and I agreed that the easy way to solve this case would be for my clients to simply obtain a new mortgage from a conventional lender and pay the Seller monies he was due.

search real estate titleAt closing, I began reviewing the closing documents, including the title work (which I usually am able to get and review days before the real estate closing). Imagine my shock when I discovered that the Seller did not own the property!  I remarked to the other attorney that we would not be closing today. He bristled a bit and demanded to know why. When I informed him that his client did not own the property, he was shocked.

Apparently, the property was owned by two spinster sisters in southern Indiana. They both passed and had long before, told their nephew that they wanted him to own the property when they died. No estate was ever opened.  We eventually closed the case and got everything resolved, but it was an item that had been overlooked at the first closing and the second closing as well.


There are some instances where you absolutely need a lawyer for a real estate deal. Here is a list of at least 5 instances when you should absolutely consult with an attorney (not an exhaustive list):

  • 1. Get a real estate attorney for any sale of realty by contract or if you’re going to do a “Sale by Owner.” There are multiple issues that arise and things that the average buyer and seller of real estate is not going to know.
  • 2. Use a lawyer where you’re buying into a subdivision where there are covenants and/or there is an association. Nightmares can await you if you get into a subdivision with an association and covenants that are so restrictive that you lose the pleasure of enjoying your property.
  • 3. An attorney is always advised where you’re buying or selling and the land is in a Trust. Complications can exist that you really need to know about.
  • 4. Use of a real estate attorney is critical where you’re buying a business property. Don’t assume that all will go well and that this is a “straight-forward deal.”
  • 5. An experienced real estate lawyer will be worth his weight in gold to you if you are purchasing a property that is a part of ongoing litigation (such as a divorce proceeding).


Whether you are a Buyer of real estate or a Seller, you should seriously consider getting an attorney involved. In Lake County, Indiana, there are many fine realtors and agents who do a good job. But, in the end it is the lawyer who will represent you and only your best interests in a real estate deal. The realtors have somewhat of a conflicting interest. They want to sell that property and by selling it, they get paid handsomely. There’s nothing wrong with that. But, will every realtor and agent overlook the desire to sell if they point out an issue that could “kill the deal?”While they are under a legal and ethical obligation to point out many things, they are not obligated to act as your attorney and advise you of legal matters.

Perhaps more to the point, will they even look for or discover the issue that could hinder your enjoyment of your home? And, do they even have a legal duty to point out some legal issues that might exist? I do not believe they do, in most instances.

It is ultimately, your choice  as to whether or not you choose a lawyer to represent you in the sale or purchase of a home. But, consider that it may be an investment that risk at real estate closingcould save you thousands of dollars in the end, and could save you dozens of hours of anguish, grief and condemning yourself for being taken because of your ignorance of something.

Sometimes, it just isn’t worth taking a chance.


Here is some good information on the HUD Closing Statement

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Explanation of a Living Trust

Let’s say you own a diamond ring, a house, a cat, furniture, and a bank account with $20,000.00. At law, there are 2 elements of ownership. There is the legal ownership and there is the beneficial ownership of any property (a “property” here means personal property and real estate). In this case, you have legal and beneficial ownership of those properties. However, if you create a Trust and place all that property into the Trust, you divide those two elements. The Trust now has legal ownership and whoever you named as “beneficiary” has the beneficial ownership of those properties. If you named yourself as beneficiary, it means that you no longer own the property legally, but you have reserved the right to use the property for your own benefit. So, when you pass on, then you no longer own any of those properties and thus, there is no need to open an estate in Probate Court.

The Essential Duties of a Trustee

In the state of Indiana, and indeed, in every state, there are statutes (laws) in place dealing with the duties and responsibilities of a Trustee. Essentially, a Trustee is a person who is entrusted as a fiduciary (someone who controls the financial assets in the Trust for the beneficiary of the Trust). See Ind. Code § 30-4-3-6(a). & (b).  A Trustee is the person or persons appointed by the Grantor (the one who created the Living Trust) to be responsible for the possession, care and distribution of the assets within the Trust consistent with the terms of the Living Trust. Sometimes, Grantors want a bank or other such entity to be the Trustee, which is permitted in Indiana.

Basically, a Trustee of the average Living Trust (sometimes called a “Loving Trust”) will have to pay the bills of the Beneficiary or Beneficiaries named in the Trust, perhaps file income taxes, and at some point, close out the Trust when all the assets have been distributed.

A typical Trust will involve a husband and wife who create a Living Trust. They are called the Grantors. They will almost always be the Beneficiaries as well. In addition, it is not uncommon for them to also be the Trustees. Sometimes, only one of them will be the Trustee with the other one named as a Successor Trustee. And, it is common for the children to be named as Successor Trustees. They are often selected in order of age, but it may be in order of the closest in location to the Grantors. It is possible to select all the children to serve as Co-Trustees, or for two of them, but it is more common for one to serve and the others to serve as Successor Trustees.

The Essential Powers of a Trustee

A Trustee has the power to do whatever the Trust instrument allows. In addition, Indiana Code gives 27 different powers to a Trustee (See IC § 30-4-4-3). Realize that the duties and the powers of a Trustee can be reduced or expanded beyond the statutory limits. For example, a Trust Instrument may specifically “hold harmless” a Trustee for his or her investments of the Trust assets. That would mean that even if a Trustee was less than prudent, even reckless, there may be no violation of the statutory duty of the Trustee. But, even a “hold harmless” clause might not excuse the Trustee in all circumstances, so the wiser course of a Trustee is to follow the “prudent investor” rule.

The Practical Aspects of Being a Trustee

In practical terms, here is what an average Trustee might expect to do if she is selected as a Trustee, or a Successor Trustee.

  • 1. Sit down and read the Trust instrument. It probably would be wise for you to meet with the attorney who drafted the instrument and go over it with the lawyer to understand it.
  • 2. Ascertain what assets you are responsible for holding, investing and/or dispersing.
  • 3. Take control over the financial accounts. You’re going to need to show the bank the Trust document and, if you are a Successor Trustee, you’re going to need to show them why you are now the Trustee. If the Grantors have deceased, you’ll need to show the bank or financial institution, the death certificates. If you have become a Trustee because of the ill health of the former Trustee, perhaps the surviving Grantor, then you’re going to have to explain to the satisfaction of the financial institution, why you are now the Trustee. This may require a letter from a doctor indicating the incapacity of the Trustee. Sometimes, all that is necessary is a statement from the Trustee that he or she is surrendering the role of Trustee and appointing you as the new Trustee. See a lawyer to prepare a document to accomplish that.

There may be other things that need to be done. You may have to sell the real estate. At some point, if the Grantors become deceased or if they can no longer live in the home (and there are no issues regarding Medicaid), then you’ll have to liquidate the estate. In short, you’ll need to convert all the assets into cash. This might require you to contact a realtor, or a stock broker, or an insurance agent, or other professionals, including an attorney or an accountant.

All in all, a Trustee is a demanding job. It isn’t a role you should take on unless you understand that you have certain responsibilities that are imposed upon you by law. Sometimes, you have to do things in a timely fashion. If you ignore some timelines, you could cost your beneficiaries money, which means you could ultimately be responsible for the losses. The role of a fiduciary means you have a duty to the beneficiaries of the Trust to act in a responsible fashion with regard to protecting and investing the assets of the Trust.

For an expanded understanding of what the duties and powers of a Trustee of an Indiana Living Trust is, contact an Indiana lawyer experienced at drafting Estate documents, including Living Trusts.

For more information, see the following resourcces:




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Child Molesting|Civil Statute of Limitations Indiana


A caveat: If you think you have a civil case, do not merely rely upon this article. Consult with an attorney. This is especially true if your facts took place in another state. This is general legal information specific to the state of Indiana. Your attorney is the one who would have to determine whether or not you have a viable legal case.

Indiana law imposes a 2 year statute of limitations on torts, to wit, actions in which a person suffers some injury caused by another person. Indiana Code § 34-11-2-4. If the harm occurs to a person who is under a “legal disability,” such as being less than 18 years of age,  Ind.Code § 1-1-4-5(24), then the statute of limitations runs two years after that person’s 18th birthday. That is the law.

General Rule of Discovery in Indiana.

The case law clearly recognizes that a tort claim accrues and the statute of limitations thus begins to run when a plaintiff knew or, in the exercise of ordinary diligence, should have discovered that an injury had been sustained as a result of the tortious act of another person. Thus, a child will be “presumed” to have known he or she was molested at the age of eighteen–though this is a “rebuttable” presumption.

Exceptions to the Rulelegal_trouble_400_clr

The statute of limitations is tolled (that is, stopped from running) under certain exceptions. Under one rule of law, while the statute is not tolled, the Courts will apply equitable relief from the tolling of the statute where it finds there is “fraudulent concealment.”

Knowing whether the statute is tolled turns on the facts of the case. It is impossible to know whether a case has no civil merit without knowing certain facts.  I’ll try and give you here, some of the factors that the courts look at when deciding these kinds of cases.

Repressed Memory.

The law in Indiana holds that anyone who claims a repressed memory, must, at trial, demonstrate that he or she had a repressed memory of the event(s) such that it prevented him or her from filing their claim within the statutory period of time, to wit, within 2 years of the statute of limitations.

Any plaintiff absolutely must present expert testimony at trial to use this exception. While one may escape summary judgment (a dismissal of the case based on a motion alleging there is no evidence to support the exception), at trial, the Plaintiff’s case  will be dismissed if he or she does not have an expert witness to testify in support of the claim of a repressed memory. It is not sufficient to merely claim there was no memory of it until recently (when “recently” is beyond the statute of limitations).

Fraudulent Concealment

The courts in Indiana have held that due to the natural and legal obligations of parents, the “discovery” of a cause of action by a child’s parent, even if there is no “actual cognition or memory” by the child, shall be imputed to the child. The imputation shall constitute the accrual of an action within  Ind.Code § 34-1-2-5, as to the “disability” of a child. In other words,  where the parent has knowledge of a matter, the child is presumed (legally) to have knowledge of a matter, thus only allowing the minor two years after reaching majority within which to commence suit.

Now, where a parent is the abuser, the imputation rule is not so strict and the courts will not allow a parent who is an intentional abuser of a child to benefit from the rule. The courts will not presume that such a parent informed a child of what it deems “significant childhood events,” and instead will permit the child to assert the doctrine of “fraudulent concealment” to keep the offender parent from asserting a defense of the statute of limitations, where he has, either from deception, or a violation of duty ( to inform the child of “material facts,” to wit, the significance of his actions), which action(s) prevented the child from filing a cause of action.

The Indiana Supreme Court, many years ago, articulated this exception and held it was (and still is) the law in the state of Indiana:

“Where equity, because of fraud, previously granted an injunction against the use of the statute of limitations in a law action, it raised an estoppel as a bar. This was based on the principle that one who practices deceit or fraud, and conceals material facts and thereby prevents the discovery of the wrong, should not be permitted to take advantage of his own deceit or concealment by asserting the statute of limitations. While a wrongdoer is concealing from an injured person his wrongful act, the law will not, through a statute of limitations, strip the injured party of his remedy against the wrongdoer.” Guy v. Schuldt, 138 N.E.2d 891, 893, (Ind. 1956).

The question, in these cases, is going to be whether the Plaintiff filed his or her case within a “reasonable time” following the discovery of the harm. The statute of limitations is not reset. In other words, the Plaintiff does not have 2 more years. The law deems this to be an “equitable exception” to the statute of limitations. It isn’t tolled. It isn’t reset. A Plaintiff must act quickly because once the court accepts a “fraudulent concealment” exception, they will find that equitable grounds cease when that person, as an adult, knows or should have discovered that a “childhood injury” was sustained as a result of a defendant’s unlawful actions.

As one court put it:

“For a plaintiff to benefit therefrom, the plaintiff must exercise due diligence in the filing of an action after the equitable grounds cease to operate as a valid basis for inducing the plaintiff’s delay.” Spoljaric v. Pangan (1984), Ind.App., 466 N.E.2d 37, 45 (Ind. App. 1984).

Someone who has been injured by a molestation or a rape or any other injury which has been “concealed” from them by the perpetrator, or could not be reasonably known, must act upon that claim by filing suit very soon after learning of the harm. Understand that the word “concealed” is a legal term and has to do with the defendant concealing the wrong he did to the victim from not just others, but to the authorities and to the victim. A child will not understand the significance, certainly not the criminal significance, nor the harm done to him or her at the time.

It will be a matter for the court to decide as to whether a civil complaint was timely or not. I’d strongly suggest that if you wait more than a year, a court would very likely bar the claim, absent some very compelling reason(s) why you failed to file quicker than that. Now, do not interpret that to mean you have up to a year. In some instances, it could be that a delay of just a few months could create enough for a court to deny the claim. There is no bright line period of time when you’re running under a fraudulent concealment exception.

Bottom line: If you have a civil case, file it ASAP.


Note:  In 2013-14 a movement was begun which is attempting to change the law with respect to certain crimes, particularly sexual abuse crimes against children. The effort is to do away with the Statute of Limitations for these kinds of crimes. In other words, it would be the same as if you murdered someone. There is no statute of limitations on murder. The argument is made by many that some of these crimes (of sexual abuse of a child) are really that: murder. They often murder that child’s future, murder that child spiritually, and murder the child emotionally. If you agree with doing away with the statute of limitations, there is a petition that you can sign. (Click PETITION)

Copyright 2014 Voyle A. Glover








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