Buyers are becoming increasingly vigilant in determining whether homes they purchase suffer from environmental hazards. As a consequence, some agents suffer through sleepless nights worrying whether a home they have recently sold may contain mold, radon, or asbestos. Determining whether a problem may exist and what duties are owed by a broker requires knowing the law as well as being familiar with the nature of these hazards.
Claims for misrepresentation are likely to arise if the agent makes a misleading statement to a buyer concerning whether an environmental hazard exists. Discussions about water or moisture problems in a property are thorny, because water intrusion or high levels of moisture often cause related problems, including excessive mold. It is a defense to a common law misrepresentation claim that the agent said nothing about the issue.
While silence may be a defense to a common law claim for misrepresentation, additional duties are imposed by the Massachusetts Consumer Protection Act, commonly known as Chapter 93A. That statute requires that a real estate agent (or other person engaged in business) must volunteer information about a defect in a property being sold about which the agent has actual knowledge, even if no questions have been asked and even if the agent was not present during the showing. Both 93A and misrepresentation claims may be defended on the bases that the agent was merely a messenger, passing along information from the seller or from a qualified inspector.
To prove the extent of the knowledge of the real estate agent, it is generally wise for the listing agent to obtain a written disclosure from the seller, asking the seller to identify known defects, including repairs and remediation efforts. The Massachusetts Association of REALTORS® has available the Sellers Statement of Property Condition disclosure form. It is recommended that agents provide a copy of the form to prospective buyers and ask the buyers to sign the form in order to acknowledge receipt.
Massachusetts law also requires that an agent provide a prospective buyer with a brochure entitled, “Home Inspectors Facts For Consumers.” Buyers should be encouraged to retain their own home inspector, because an inspection provides a layer of protection for a real estate agent. However, an agent who represents a seller is prohibited from recommending an inspector to a buyer and may only direct the buyer to the complete list of licensed inspectors.
Mold is a microscopic organism that exists naturally and is virtually everywhere. Mold can grow virtually anywhere if given: (1) adequate nutrients, such as wood, paper wallboard, or leaves; (2) sufficient water, moisture, or excessive humidity; and (3) temperatures between 40 and 100 degrees Fahrenheit. There are tens of thousands of species of mold, many of which are not harmful, such as those needed for cheese.
If moisture from a bathroom is vented into an attic rather than outside, or if mold is allowed to exist for a lengthy time, wood or wallboard in a structure may begin to rot. In addition to the potential to damage a structure, if certain species of mold grow extensively, the mold can produce airborne spores that may aggravate lung problems or cause flu-like symptoms in susceptible individuals. There is no official government standard concerning what level of mold indoors is considered “dangerous” and what level is considered "safe."
While the scientific community has not proven beyond doubt that there is a relationship between exposure to mold and health problems, the standard for legal liability is proof that a claimant’s health problems were “more probably than not” caused by exposure. Therefore, the recommended practice to reduce the risk of a claim is to disclose all information that is known about the history of mold and about water infiltration in a property.
A qualified inspector may be able to identify certain species of mold visually, but inspections usually involve the swabbing of surfaces and taking of air samples from both inside and outside (as the control sample). The samples are then placed in a Petri dish to determine the species and quantity of mold. If the airborne level indoors does not exceed that of the control sample, the test does not lead one to conclude that there is an excessive level of mold in the home.
Remediation of excessive mold may involve removing wood, wallboard, or other materials with mold. More importantly, it involves substantially reducing or eliminating the causes of water penetration or excessive moisture.
Radon is a radioactive gas produced by the normal decay of uranium and radium in the earth. It is odorless, colorless, and tasteless, undetectable by human senses. Scientists believe that exposure to high levels of radon gas and to the radioactive particles that result from decaying of the gas may increase the risk of developing lung cancer if exposure continues over long periods of time. There is no assachusetts or federal law requiring testing or disclosure for radon. Should a consumer choose to test, the most common test kits use an activated charcoal detector that traps the gas. The detectors can be purchased at most hardware stores for $10 to $15 and are left in place for five to seven days. The detector is then sent to a lab to be analyzed. More sophisticated monitoring can be done if levels are questionable or results are needed more quickly. The level of radon is measured in pico Curies (p/Ci) of radiation per liter of air. The EPA recommends that action be taken where levels exceed 4 p/Ci/l. That exposure level is believed to involve the same risk of developing lung cancer as smoking half a pack of cigarettes per day. A person exposed to 4 p/Ci/l has five times the risk of dying from lung cancer than one who is not exposed. It is estimated that the average outdoor level is 0.2 p/Ci/l. Radon can enter the home through the foundations of homes through cracks, sump pump holes, and floor drains. If corrective action is indicated, the most logical cure is to seal the cracks where it may be entering or to place hoods over sump pumps. Ventilation is then added using an electric fan, which releases the exhaust to the outdoors.
There may be other toxic substances or hazards in a home that real estate agents should not ignore, including asbestos, lead paint, and underground oil storage tanks.