from the Iowa District Court for Delaware County, John J.
sellers appeal from judgment in favor of home buyer. REVERSED
Hillary J. Friedmann of Friedmann Law Office, Guttenberg, for
McClean of McClean & Heavens Law Offices, Dyersville, for
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
and Jennifer Cherne sold their home to Alex Heiderscheit in
2012. Heiderscheit had subsequent problems with the home and
brought this action against the Chernes. The district court
ruled in favor of Heiderscheit. The Chernes now appeal.
Chernes purchased the home at issue in 2004. They sold it to
Heiderscheit in 2012. The parties were aware of potential
problems with the home's septic system prior to
completion of the real estate transaction. Several documents
acknowledge those issues. A proposed purchase contract
provided: "In the event the septic system needs to be
replaced and repaired, seller will incur all expenses to have
septic system brought up to Iowa Code." The inspection
addendum to the purchase contract provided: "With
written acceptance of said purchase contract, buyer shall
require the seller to provide the results of a septic system
inspection performed by a DNR certified inspector."
Heiderscheit submitted a counteroffer to the proposed
contract. His counteroffer provided: "Seller will assure
septic meets current transfer standards and provide
supporting certification at least ten days prior to closing
or sooner if contractor can complete earlier." The
Chernes submitted their own counteroffer in response, which
provided: "Seller will not be required to provide
results of a septic inspection by 4/25/12, as seller is aware
that septic does not meet current transfer standards. Seller
will assure septic meets current transfer standards and
provide supporting certification, by replacing or repairing
septic system, at least ten days prior to closing or sooner
if contractor can complete earlier." Heiderscheit
accepted this counteroffer. The residential seller disclosure
sheet provides: "Septic system installed. Maintenance of
$165 every four years."
to the purchase contract, the Chernes replaced the septic
system prior to sale. The septic installation was completed
on or about May 25, 2012, by Harter Custom Plumbing/Septic.
Robb Harter, the owner of Harter Custom Plumbing/Septic,
completed a time of transfer inspection report. The report
provided the system was new and in good condition. The report
also provided, "This report indicates the condition of
the private sewage disposal system at the time of the
inspection. It does not guarantee that it will continue to
function satisfactorily." The parties completed the real
estate transaction in June.
March 2013, water and effluent leaked into the basement of
the home and out of the ground surrounding the home.
Heiderscheit hired several repair services. Eventually, a new
septic system was installed. In 2015, Heiderscheit listed the
home for sale and included this note on his real estate
Previous owner [i.e., the Chernes] had new septic installed
prior to our closing in June of 2012, due to the old septic
not meeting Iowa Code. In March 2013, the basement had
standing water. We involved two septic companies and the
Delaware County Sanitation Supervisor to find out what may be
causing this. No justifiable reasons were found. We had a
construction company come in and they dug a hole in the
basement floor and found a broken pipe. They repaired and
capped off the end and installed a new sump pump. During this
process, it was discovered that the septic system was
installed incorrectly. A brand new septic system was
installed by Oasis Well and Pump in August/September 2015. No
in the real estate disclosure statement he clarified the new
sump pump was installed in 2013.
brought suit against the Chernes in October 2015. The case
proceeded to bench trial in September 2016. On September 7,
the Chernes filed a trial brief in which they wrote, "It
is unclear from plaintiff's Petition at Law which theory
of recovery they are using to seek relief." The trial
brief went on to discuss Iowa Code Chapter 558A (2015), which
concerns real estate disclosure statements. On September 12,
Heiderscheit filed a trial brief asserting ...