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The home seller lawsuit

Several cases in the Queen Creek area may launch the next chapter in the fight against fissures that are pulling homes and yards apart.

One homeowner is suing her property's previous owners and real estate agents involved in the deal while several others are considering similar lawsuits. Another has filed a complaint with the Arizona Department of Real Estate, which could issue fines.

It may be a sign of things to come. Fissures, cracks in the ground that expand and can cause structural damage, are more common in former agricultural areas, which happen to be home to many of the Valley's new housing hot spots.

"I'm sure there are a lot of other attorneys that, once they hear about this case, will watch it," said David Sandoval, an attorney who filed the lawsuit on behalf of resident Joan Etzenhouser.

It is the latest round in an ongoing battle between home buyers and developers, which over the past decade in Arizona has included scores of disclosure lawsuits over new-home issues such as shoddy construction, inadequate drainage, HOA rules and unreported nearby nuisances.

Etzenhouser purchased property near the Santan Mountains in February 2004 for $230,000. But nearly three years later, she fears the value of her home has plummeted because of a trio of fissure cracks that have shattered her land, cracked floor tiles and separated walls and ceilings.

"My holes are getting deeper and wider," Etzenhouser said. "They've, like, doubled in size."

Earth fissures, or subsidence cracks, have been a problem in Arizona for decades but have become more prevalent as growth has pushed toward the agricultural fringes of the Valley, particularly into Pinal County and parts of the West Valley near the White Tank Mountains. The cracks often open when exposed to water, and they can cause substantial structural damage.

Sandoval, an attorney with Carmichael & Powell, predicted that Etzenhouser's case won't be the last.

He said that, to his knowledge, this is the first Arizona lawsuit involving a homeowner seeking compensation for damages caused by a fissure that was not disclosed. In years past, homeowners have sued their builder or developer because of soil settlement problems and construction defects.

He said he has already spoken with at least four other homeowners in the area who are also considering filing suit.

Did seller know?
Etzenhouser noticed the cracks shortly after she moved into the house. She believes the people who sold her the home knew about the cracks and did not disclose them, as they were legally obligated to do.

"I just think somebody ought to get smacked real hard because they know better," she said.

Robert Kline, owner of R&M Realty, which operates as ReMax 2000 and is named as a defendant in the suit, said agents rely on statements by the seller, which he said in this case didn't indicate any fissures were on the property. He also said the agency advised Etzenhouser to get a home inspection before the purchase, which he said she waived.

"Some people don't take our advice," Kline said.

Bradley P. Burke and Patti J. Bailey, former owners of the property, along with John S. Richins, the seller's agent, and Jonna Baker, Etzenhouser's realty agent, are also named as defendants in Etzenhouser's civil suit filed in Pinal County Superior Court. She is claiming that they participated in breach of contract, fraud, fraudulent concealment, negligent misrepresentation and negligence.

The suit alleges the sellers lied about known defects on the property, and that Richins and R&M Realty "knew or should have known" that the property contained fissures or "was likely to develop fissures."

The suit states that fissures in the area have long been documented.

Sandoval said the amount of financial damages Etzenhouser is seeking won't be determined until trial. Experts will determine the severity of the fissures on her property, if they can be repaired and, if not, what the financial impact of those fissures is and how they have affected the value of Etzenhouser's home.

No legal response to the suit has yet been filed by any of the defendants.

Fissures became the focus of attention late last year after heavy monsoon rains opened a massive crack south of Queen Creek that left several homeowners with crumbling driveways and cavernous property.

As a result, the state Legislature approved funding for the Arizona Geological Survey earlier this year to update maps of fissures and make them available online for public use.

In addition, the Arizona Department of Real Estate changed its subdivision reports to include a separate section for fissure disclosure. Previously, fissure disclosure was included in a soil report and not singled out.

Agency gets 1 complaint
The Arizona Department of Real Estate is also processing a complaint from a Queen Creek-area homeowner.

Mary Utley, a spokeswoman for the Department of Real Estate, said the complaint is in the negotiation period, when fines against the realty agent and/or a realty agency are being determined.

Utley said she could not elaborate on the nature of the complaint and would not know any more about the outcome until the negotiation period was complete.


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