property disclosure: the real estate professionals guide to reducing risk marcia l. russell, drei
TRANSCRIPT
Property Disclosure: The Real Estate Professional’s
Guide To Reducing Risk
Marcia L. Russell, DREI
Introduction To Property Disclosure
Why Property Condition Disclosure Is Important
NAR statistics regarding lawsuits
E & O statistics regarding lawsuits Elimination of Caveat Emptor in
most states New focus on environmental
problems
Remedies For Failure To Disclose Defects
Actual damages
Punitive damages
Rescission of the transaction
License suspension or revocation Board of REALTORS® disciplinary
action
Misrepresentation
Definition
What is a material fact?
Opinion versus material fact
Theories of Legal Liability
Active fraud Cooper & Co. v. Lester
Passive fraud Naghad v. Century 21 Page One Realty
Negligent misrepresentation Hamtil v. J.C. Nichols Real Estate
Theories of Legal Liability Negligent non-disclosure
Amato v. Rathbun Realty Gouveia v. Citicorp Easton v. Strassburger Tri-Professional Realty, Inc. v. Hillenburg
Negligent advice Gerard v. Peterson
Reliance on Statements Made by Sellers
When brokers may be liable for incorrect statements made by sellers
Hoffman v. Connell
Other Bases of Misrepresentation Liability
Code of Ethics of National Association of REALTORS®
Licensing Act Liability
Consumer Protection Laws Carter v. Gugliuzzi
Duty to Disclose
Analysis of “who represents whom” in a real estate transaction
Parahoo v. Mancini
Seller Disclosure
Use of property condition disclosure forms
Benefits of using disclosure forms
Trend toward mandatory disclosure
Property Disclosure Benefits
The seller
The purchaser
The real estate professional
Case Summary on Property Condition Disclosure Forms
Amyot v. Luchini Englehart v. Kramer
Limiting Liability for Misrepresentation Claims
Implement procedures designed to reduce liability
Effective use of property condition disclosure forms
Involving third-party experts
Limiting Liability for Misrepresentation Claims
Conduct an inspection and watch for
red flags
Document, document, document
Don’t predict the future
Answer questions carefully
The Role of Home Inspectors
Value of obtaining a professional evaluation of the property
Pre-listing home inspection
Wisdom of buyers conducting their own inspections
Stigmatized Property, Megan’s Law &
Neighborhood Safety
Stigmatized Property
Property psychologically impacted
Event occurred or suspected to have occurred on property
No physical impact
Stigmatized Property Most states have laws
that declare stigmas are not material facts.
Stigmas include Murder
Natural death
Suicide
Assault
Sexual assault
Felony crimes
AIDS and HIV
AIDS Disclosure
AIDS is a fatal disease
AIDS can be transmitted through Sexual contact Inoculation with HIV infected blood Pregnancy
AIDS Disclosure
Fair housing concerns
HUD position
National Association of REALTORS® position
Disclosing Other Stigmas Determine whether the information
is fact or fiction Check state laws Determine materiality Discuss disclosure with the sellers
Disclosing Other Stigmas Benefits of disclosing other stigmas New York Court reviews parties’
duties to disclose house was haunted Stambovsky v. Ackley
Megan’s Law Background Federal law mandates community
notification of location of sex offenders
Megan’s Law The role of the real estate
professional Exemption for licensees in some states Check state laws and licensing
standards for guidelines on disclosure of sex offenders.
Constitutionality Concerns Opponents argue sex offenders are
being punished over and over by publishing their names and location.
Megan’s Laws declared unconstitutional in Hawaii and Connecticut.
Constitutionality Concerns 2003 U.S. Supreme Court Ruling
Connecticut’s Megan’s Law declared constitutional
Neighborhood Safety Responding to questions
regarding neighborhood safety
Property Management- crimes and dangerous conditions
Elizondo v. Brightwood Townhomes
Lead-Based Paint Disclosure
Lead-Based Paint Disclosure
Purpose of The Lead-Based Paint Hazard Reduction Act
Involves housing built prior to 1978
HUD and EPA have issued joint regulations requiring the disclosure of known information on lead-based paint/hazards in target housing.
Regulations The Regulations do not require
testing or removal of lead-based paint.
If the lead paint is in good condition, it typically does not pose a problem
Lead Poisoning and Its Effects on Children and Others Major sources of lead exposure
Children between the ages of 18 months & 6 years are at greatest risk
Testing for lead poisoning
Lead Poisoning and Its Effects on Children and Others Lead-based paint is the most
common cause of lead poisoning in children.
Health problems include: Damage to the brain and nervous
system Behavior and learning problems Slowed growth Hearing problems Headaches Coma, convulsions and death
Lead Poisoning and Its Effects on Children and Others The best way to determine if a child
has high levels of lead in the blood is to do a blood test
Toxic signs
Lead Poisoning in Adults Lead in drinking
water
Pregnant women
Symptoms in adults
Brief History of Lead The many uses of lead
Efforts to restrict the uses of lead
Summary of Housing Not Covered
Housing built after 1977
Zero bedroom units
Housing for the elderly or persons with disabilities
Leases for less than 100 days
Foreclosure sales
Rental housing certified as lead-free
Definitions Agent
Housing for the elderly
Lead-based paint
Lead-based paint hazard
Risk assessment
Target housing
Zero bedroom units
Essential Requirements of Sellers/Lessors
Prior to ratification of a contract— Sellers & lessors must disclose known lead-
based paint and/or hazards & provide available reports to buyers & renters.
Buyers & renters must be given the pamphlet Protect Your Family From Lead in Your Home.
Buyers must be given a 10-day opportunity to conduct an inspection or risk assessment
Lead warning statements
Essential Requirements of Sellers/Lessors
Prior to ratification of a contract —
Records must be maintained for three years
Sample contract contingency
Sellers, lessors and real estate agents share responsibility for compliance
Essential Requirements of Sellers/Lessors
Buyers must acknowledge receipt of the Pamphlet, the required disclosures, and the 10-day opportunity to conduct a risk assessment or inspection for the presence of lead-based paint
Enforcement
HUD penalties up to $11,000 for each violation
EPA—Civil penalties up to $11,000 per violation; Criminal penalties up to $11,000 per violation
Private action with treble damages available
Testing Paint inspection
Risk assessment
Testing methods
New Regulations for Federally Assisted Housing HUD-issued rules require notification,
evaluation and reduction of lead-based paint hazards in housing that receives federal assistance
Covered properties
Lead-Based Paint Pre-Renovation Rules What is covered
Who is covered
What is required
When to give notice
Case Law EPA imposes first civil penalties
totaling $439,725.
EPA sites building owners for 46 violations of Lead-Based Paint Rules
Large Settlements in Property Management Padilla v. Jois Realty
Hiraldo v. Kahn
Mold: A Growing Concern
Mold and How It Affects Real Estate
Latest environmental scare Response by the real estate
profession Response by the insurance industry Debate on health effects of mold
What Is Mold?
Type of fungi
Common indoor molds
CDC position on heath concerns
What Is Mold?
Type of fungi
Common indoor molds
CDC position on heath concerns
CDC: Making Your Home Less Mold Friendly
Maintain indoor humidity below 50%
Use air conditioners and dehumidifiers during humid months
Maintain adequate ventilation
Add mold inhibitors to paint
How Molds Reproduce
Food source
Source of moisture
Optimal temperature
Building Materials and Construction
Tight building construction
Moisture control
New building
materials
Common Sources of Indoor Moisture Overflow from sinks
and sewers Wet and damp areas Moisture from cooking
and bathing Humidifiers Flooding Plumbing leaks and
broken pipes Condensation on
improperly insulated pipes
Leaking roofs Clothes dryer not
properly vented Firewood stored
indoors Over watering plants Older doors that
lack good seals Cracks or holes in
the building
Toxic Mold—Stachybotrys Chartarum
Thrives on materials high in cellulose
Can create mycotoxins
Adverse reactions to toxic mold
People affected more than others
Health Effects of Mold
Allergies
Infections
Irritations
Health Effects of Mold
Common health effects
Serious health
effects
EPA: A Brief Guide to Mold, Moisture and Your Home
Guidelines for cleaning up mold
problems
Guidelines for preventing mold
growth
EPA: A Brief Guide to Mold, Moisture and Your Home
Key to mold control is moisture control
Moisture and mold control prevention tips from the Guide
Removing Mold Proper equipment Shut down
systems Minimize
spreading of spores
Remove visible mold
Disinfect surface
Mold in My Home: What Do I Do? How can I tell if I have
mold? Should I test for mold? General clean-up
procedures What should I save or toss?
Mold Issues and the Real Estate Professional The real estate agent duties State law requirements regarding
disclosure of latent defects California Code
Mold Issues and the Real Estate Professional Risk Reduction Tips
Education Visual inspection by concerned party Seller disclosure
Crisis in the Insurance Industry
Multi-million dollar judgments
Debate as to proven health effects
CDC position
Texas Medical Association
Texas—Mold’s Ground Zero
70% of claims in 2001 were in Texas
Mold claims skyrocketed from 1,050
in Q1 of 2000 to 14,706 in Q4 of
2001.
Mold tax
$0
$100
$200
$300
$400
$500
$600
$700
$800
1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001*
Source: Texas Department of Insurance * 2001 (estimate based on Jan. - Mar. data)
Texas: Paid Losses for Water Damage Claims
Sharp increase in water losses were obviously part of the problem.
The Response from the Insurance Industry Homeowners’ insurance becoming
unavailable and unaffordable Exclusionary endorsements Other options
The Lawsuits California homeowner awarded
$18.5 million Tenants awarded $1 million in
Delaware Ed McMahon sued for $20 million Multi-million dollar Texas mold
verdict reduced
Other Environmental Concerns
Hazardous Materials
Effect on property values Testing requirements by lenders
Health concerns
The Real Estate Professional’s Role Become familiar with common
hazards in market
Recognize potential hazards
Avoid making representations about environmental condition of property
The Real Estate Professional’s Role
Environmental contingency clause
Seller property condition forms
Home inspectors
CERCLA and SARA
Creates liability for cleanup
Innocent landowner’s defense
Potentially responsible parties
Liability of the real estate agent
Environmental Due Diligence
The process of taking all appropriate and reasonable steps to ascertain there is no contamination at the site.
Evaluating Environmental Hazards Preliminary Site Assessment
Phase 1 Environmental Assessment
Phase 2 Environmental Assessment
Phase 3 Environmental Assessment
De Minimis Settlement
The EPA will consider a de minimus settlement with innocent landowners that would limit the amount that must be contributed for the clean-up.
Factors considered by EPA to establish de minimus settlement.
Asbestos
Naturally occurring silicate mineral Link to cancer Use in construction materials When asbestos is dangerous Litigation update
Common Places Where Asbestos Is Found Vinyl flooring material Patching compounds & textured paint Ceiling tiles & sprayed ceilings Stove & furnace insulation Door gaskets Pipe insulation & wall/ceiling insulation
In some appliances, roof shingles, & siding
Removal of Asbestos Damaged asbestos should be
repaired, enclosed or removed by a trained professional.
EPA publication Asbestos in the Home: A Homeowner’s Guide
Radon
Radon is a naturally occurring odorless, tasteless radioactive gas
Radon is the second leading cause of lung cancer after cigarette smoking
EPA estimates that 1 out of 15 homes has radon levels in excess of its guidelines
Radon
Testing for radon Easy and affordable Costs Charcoal canister and alpha tract
detector Factors to consider when testing
Real estate transactions and radon
Radon
Radon reduction methods Increase natural ventilation Seal cracks and openings Seal floors in basements Naturally ventilate the crawl space Filter the water through a bed of
granular activated carbon
Radon
The EPA Guidelines If buying or selling a home, have it tested. If buying a new home, ask if radon-resistant
construction features were used and if the home has been tested.
Fix the home if the radon level is 4 Pico Curies per liter or higher.
Radon levels of less that 4 pCi/L still pose a risk and in many cases may be reduced.
Underground Storage Tanks Definition
EPA regulation under RCRA
EPA updated regulations
Exempt tanks
Underground Storage Tanks The role of the real estate
professional Red flags
Leaking underground storage tanks
Waste Disposal Sites
Golf courses and office buildings are being constructed on landfill sites.
Impact on the real estate industry
Noise
Noises that are known should be disclosed to purchasers
Noise is a major source of stress
Alexander v. McKnight