Sometimes. Whether the seller owes you anything turns less on the deck than on what the seller knew and what they wrote down before you signed. Two state laws show how that works: Texas Property Code § 5.008, readable free at the Texas Legislature's statutes site, and Washington's seller disclosure chapter, RCW 64.06, at the Washington Legislature's site. Your state's law may differ from both. The first document to find is the disclosure form your seller actually signed.
What the seller had to tell you
In Texas, a seller of a home with a single dwelling unit has to give the buyer a written disclosure notice. One question on it asks whether the seller is aware of "room additions, structural modifications, or other alterations or repairs made without necessary permits or not in compliance with building codes in effect at that time." The seller writes Yes or No.
Washington's form asks the question more directly. Have there been any conversions, additions or remodeling? If yes, were all building permits obtained, and were all final inspections obtained? The seller can answer Yes, No or Don't know.
Whether a deck counts as an addition, a structural modification or an alteration under the exact wording of your form is one of the first things an attorney will look at. So is the box your seller ticked.
Why "didn't know" matters so much
Both forms ask about the seller's knowledge, not the condition of the house. The Texas notice describes itself as a disclosure of the seller's knowledge as of the date they signed it, says it is not a substitute for inspections, and says it is not a warranty of any kind. Washington's statute says the same of its statement: it "shall not be construed as a warranty."
Washington then spells out the consequence. Under RCW 64.06.050, a seller is not liable for an error or omission in the statement if they had no actual knowledge of it. Without actual knowledge, a seller is also not liable for an answer based on information from a public agency or from a licensed professional, such as a structural inspector or a contractor.
That splits sellers into very different positions. A seller who had the deck built without a permit and ticked No is one case. A seller who bought the house with the deck already on it and answered Don't know is another.
After closing, the disclosure law is not the remedy
The rights these laws give a buyer are mostly before-closing rights:
| Texas (Section 5.008) | Washington (RCW 64.06) | |
|---|---|---|
| The permit question | Aware of additions, modifications or repairs made without necessary permits? | Any conversions, additions or remodeling? All permits obtained? All final inspections? |
| Possible answers | Yes / No | Yes / No / Don't know |
| When it is due | On or before the contract takes effect | Within five business days after mutual acceptance, unless agreed otherwise |
| Buyer's way out | If the notice arrives after the contract, terminate for any reason within seven days of receiving it | Rescind within three business days of receiving the statement, unless agreed otherwise, and get deposits back |
| Exempt sales include | Foreclosure, a fiduciary administering a decedent's estate, a new never-occupied home | Foreclosure or deed in lieu, a personal representative of an estate, a buyer who waived the statement |
| A warranty? | No | No |
Both exits are ways out of a contract, so they belong to the weeks before closing. For what comes after, Washington's RCW 64.06.070 says the disclosure chapter creates no new right or remedy for a buyer beyond that rescission, but it also does not take away rights the buyer already has against the seller under common law, another statute or the contract. So in Washington, a claim after closing has to rest on one of those.
If the house came to you through a foreclosure or from an estate, check first whether your seller had to fill in a form at all. In both states, those sales are on the exempt list.
What to gather before you call an attorney
- The signed disclosure form and the seller's exact answer to the permit question, including any written explanation attached to it.
- The permit history for the address. No permit on file for the deck is the starting fact. Here is how to look up building permits by address if you have not pulled it yet.
- Anything that dates the deck: your inspection report, the listing photos, and any older photos or records that show when it appeared and who owned the house then.
- Photos of the deck as it is now, before anyone repairs or removes it.
Bring all of it to a real-estate attorney licensed in your state. Whether you have a claim, against whom, and whether it is worth the cost of pursuing are their questions to answer, and they differ by state.
If you are still before closing, you are in a much stronger spot: this is the time to find unpermitted work before buying, and to check whether either window in the table above is still open for you.
The deck itself is a separate problem
A claim against the seller, if you have one, is about money. The deck still has no permit either way. Legalizing an unpermitted deck walks through the after-the-fact permit, the as-built drawings and opening the framing for an inspector.
If you are the contractor the new owner calls to look at it, photograph what you find before you change anything. Those photos may matter to the owner's attorney as much as to your quote, and spotting unpermitted work behind the wall covers how to raise it with a homeowner.