Realtor disagrees about disclosure laws
Q: I am a Realtor in a major Midwestern city and am constantly amazed when your column wanders into arenas not within the scope of your expertise, without any disclaimers to limit your liability. For example, are you not aware that real estate laws are regulated by individual states? Yet you consistently answer questions about what sellers are required to disclose and what agents are required to disclose as though the requirements apply uniformly in every state. Are you an attorney? If not, you should withhold such opinions. In my state, you’re wrong about 50% of the time. If I were you, I'd make sure my liability insurance was paid in full.
A: It would be easier to address your concerns if you could provide specific examples of offending statements in past articles and if you could specify the state where you read this column. Lacking that information, my general responses are as follows:
• Real estate disclosure laws vary in specific details from state to state, but the underlying premise of disclosure laws is uniformly based and commonly understood nearly everywhere in the country. The spirit and intent of disclosure laws are essentially this: Sellers and real estate agents are required to disclose to buyers any adverse conditions of which they have knowledge. This is the case, not “50% of the time,” but nearly always. Failure to recognize this ethical standard is an invitation to courtroom intrigue.
• A law degree is not needed to give common sense solutions to everyday disclosure problems or to advise readers regarding the basic essentials of honest disclosure. When a consultation with an attorney has seemed appropriate, that has routinely been the recommendation in this column.
• Liability insurance is necessary for disclosures made in a home inspection report. Opinions expressed in a public forum are constitutionally protected by the First Amendment.
Q: When we purchased our home, we asked our home inspector about the condition of the chimney. He told us that it was not important. I should have seen that response as a major red flag. Today we had the chimney cleaned, and the chimney sweep discovered a loose brick lining, requiring very costly repairs. Do we have any recourse against the inspector?
A: It is understandable that a home inspector might not recognize an obscure chimney defect. But it is beyond reason that any professional inspector would regard chimney conditions as “not important.” What could possibly be more important than a fixture intended to contain a wood fire within the confines of a combustible home?
Whether the inspector is liable for failure to disclose the chimney problem depends upon whether the defect was visible and accessible at the time of the inspection. If loose bricks can be observed by shining a flashlight up through the damper or down the chimney top, then the inspector should have disclosed this in his report and should be held liable. Beyond that, he should have regarded the chimney inspection as bearing the highest level of importance for you, his client.
• Distributed by Action Coast Publishing. Questions to Barry Stone can be emailed to barry@housedetective.com.