Couple wants property contract terminated over flooding issue

Kelly Holleran Jan. 22, 2010, 5:41am

A couple claims they have been unable to rent out a house they purchased because of flooding issues that they say should have been disclosed prior to the sale.

Donald and Vickie Wilson filed a lawsuit Jan. 14 in Madison County Circuit Court against Donald and Peggy Shank and Terry Allan doing business as Allan Auction Services.

The Wilsons claim they purchased property at 106 W. Country Lane in Collinsville on April 9 during an auction for $33,250. Prior to the property's sale, the Shanks owned it and hired Terry Allan to assist them in the auction, according to the complaint.

The Wilsons purchased the property with the intent to rent it out, but discovered that the back and side yard of the house flood on a regular basis rendering it unable to be used because of standing water that fails to properly drain, the suit states.

"That the extensive flooding in the yard has caused water to fill the crawl space of the home and the garage," the complaint says. "That because of the flooding in the backyard, Plaintiffs have been unable to rent the property which was their sole intention for purchasing the Subject Property."

In fact, while the Shanks lived in the home, the city of Collinsville dug ditches behind the property to help with drainage issues, the Wilsons claim.

The Shanks and Allan were obligated to provide a residential real property disclosure, which would have revealed the flooding problem as it occurred before they sold their home, the Wilsons claim.

"That Plaintiffs relied to their detriment on defendants' silence and overt omission in not disclosing the flooding and drainage issues on the property," the suit states. "That Plaintiffs would not have purchased the property had they known about the flooding and drainage problems."

In addition to the Shanks, Allan also knew of the flooding at the property because he sat on the board of the Township of Collinsville and informed the Wilsons of the flooding after they purchased the property, the complaint says.

"That Defendant Terry Allan d/b/a Allan Auction Service knew that the backyard had previously had drainage and flooding problems but did not disclose same to Plaintiffs in an effort to induce the plaintiffs into purchasing the property and receive compensation for his auction services," the suit states.

According to the complaint, because the Shanks and Allan failed to provide the disclosure, the Wilsons have the right to terminate their contract and the Shanks should be responsible for damages the Wilsons have incurred.

In their seven-count complaint, the Wilsons seek an unspecified judgment, an order that the contract is terminated and an order that they be refunded their full purchase price and any money they have spent since buying the property including labor and loss of rent of $60,000, plus attorney's fees, costs and other relief the court deems just.

Alicia J. Downs of the Law Office of Alicia J. Downs in Edwardsville will be representing them.

Madison County Circuit Court case number: 10-L-33.

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