Fireplace Not Properly Insulated?

Question

I sold a new construction SF home a few years back and just received an email (see below) that the fireplace is not properly insulated. I'm looking for advice in responding. The picture is the actual fireplace. Happy New Years!

Email:

I was hoping to get your feedback regarding an issue we recently found with our fireplace at our house.  We have always noticed a big draft coming in through our fireplace.  I was talking to a friend and he mentioned they may not have insulated it properly.  We pulled off a little bit of siding and could see that they did not insulate the floor.  Based on pictures we have when the house was built (2011) it looks like they probably didn't insulate the walls around the fireplace either.  I can't confirm that without pulling down a great deal of siding, sheathing, etc which I am not comfortable doing.

I know the warranty has expired so we won't be covered under that but the walls/floor around the fireplace, as built, were not up to the building code.  We know we are loosing a lot of heat due to this and it could impact resale value.  Is this something that the builder is obligated to fix or has too much time passed?

Bill Gulley · Answer

Looks like a zero clearance fireplace insert. You don't put insulation in there!

The draft is probably because they don't have the damper closed all the way.

If there is a draft from the floor, go under the house or that floor and cover it below the floor.

Use fireplace caulk, mortar caulk around the FP, regular caulk on trim front and sheetrock.

But insulation doesn't go in the fireplace cavity or opening.  :)

Kevin Barrett · Answer

Thanks again @Joel Owens. Agreed that it's a good idea to leave it to legal representation to sort out.

Their attorney replied this morning saying that a certificate of occupancy was issued by the Town so the presumption was that the Building Inspector had inspected and found all construction to be compliant which would include insulation. Also, he mentioned that the limited warranty expired so the buyers are most likely not going to win this argument.

Joel Owens · Answer

"The buyers didn't do a home inspection"

A judge will usually say a buyer has a "right to their own inquiry" before closing. If they choose not to exercise that right then they won't win damages later on for what they could have found but chose not to investigate.

Now had they completed an inspection but the defect was not discoverable in such an inspection then they might win the argument. The other angle is what is the builder required to do per building codes which vary down to every county and city.

There are multiple things going on here. If the builder is a smaller builder they generally use and llc and once finished on that subdivision shut down the business for future developments to avoid claims like this one. If it's a medium to larger builder then likely they are still around ( hopefully ) and the cheapest thing is to get the builder to fix the issue rather than go to court.

All these options and more are really for the attorney to discuss with the buyer. You are not an inspection expert and neither is the brokerage. It's a legal matter at this point which you have no expertise in so the buyer needs to understand that.

No legal advice

Kevin Barrett · Answer

The house was built after it was under contract. The buyers didn't do a home inspection. Their punch list was exhaustive, but didn't mention the fireplace insulation. This is the first time I'm hearing about it. They actually emailed their atty too so I will let the atty handle it and can talk to my broker as well. I'd be curious to know what the building code is regarding insulation around the fireplace. Thanks Joel!

Joel Owens · Answer

Hi Kevin,

I can't give legal advice. Whether you are a broker or an agent you shouldn't be giving legal advice either.

The gist of what the buyer is saying is they are looking for someone to pony up the money to fix the problem.

Since this was new construction was the house already built when purchased by them or did they put a lot under contract and it was built for them over 3 to 6 months?

Did you have a home inspector inspect the property before closing and also do checks up in between building the property?? Any discovered punch list issues should have been addressed prior to closing. After closing the builder is slow to fix anything as they have gotten their cash.

Some home inspectors have "thermal imaging readers" which will show if there is a great loss in certain areas that have not been insulated correctly. That is the best way without disturbing the walls etc. to see what is behind them.

I would send this one up to your broker. Generally in most purchase and sale agreements it says that the broker/agents are NOT legal advisers, accountants, inspectors, etc. and that buyers should conduct  due diligence properly before buying. If the buyers didn't want to pay for an inspection or a particular report and closed anyway it is on them. If you (hopefully not) pushed them into closing when they brought up concerns then maybe they could bring an E & O claim against the brokerage.

Send it up to your broker and see what they think before replying to these buyers. No legal advice.

Fireplace Not Properly Insulated?

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