Q: You co-authored an article a few years back about a homeowner that faced a seller that hid defects in their home. In the article it mentioned an asbestos issue.
I recently closed on a house in Florida and the inspector did not identify the ceilings as popcorn, nor did he call out the possible hazard in the report summary. He also did not recommend testing in this massive development, which was built in the early ‘70s. The Realtor claims she never heard of a possible asbestos issue in this development (they all have popcorn ceilings) and the owner said no asbestos was present.
So, we closed. But after we closed, I had the ceiling tested because I didn’t like the look of the popcorn. Sure enough, it had asbestos, which will now cost me about $8,000 in removal and lost rent.
I’m really mad and would like to track down an attorney who is experienced in similar issues. Thank you for any help you may be able to offer.
A: You’re in an unfortunate situation. We’ve written quite a bit about seller disclosure issues and some of the problems buyers have encountered once they closed on the property and started living in their home.
In many of these cases, the buyers encountered issues that ended up being quite minor, say a couple of hundred dollars’ worth of problems. We say minor because a major problem would be like yours, where you have an $8,000 issue or, worse, where homeowners face tens of thousands of dollars of expenses or have a situation that’s literally unfixable, and must tear down the property.
Seller disclosure laws are interesting from a legal perspective, because the seller is usually required to know or should have known about the issue or problem. If the seller doesn’t have any information, you can’t hold the seller liable for the problem or the remedy. On the other hand, when you catch the seller red-handed in a lie (i.e., they knew and didn’t disclose), the seller will have to pay.
Asbestos is an interesting case on its own. Most homeowners don’t know what asbestos is or when they encounter it. You might encounter asbestos in pipe wrapping commonly found in older homes, or sound as wrapping around old boilers in colder climates. Even then, it can be hard to tell. Your boiler or pipes are wrapped but you don’t know if the wrapping contains insulation that’s asbestos-free.
Interestingly, most home inspectors will rarely say that something is or isn’t asbestos. They will instead say that the item looks like it could be asbestos but recommend having a qualified asbestos professional with plenty of testing experience make a definitive call.
That said, we wrote an article a couple of years ago about a home inspector who went into a furnace room and found the entire room was covered in wrapping and insulation, Any good home inspector should have noted the room looked like it could have been asbestos. Instead, this guy said nothing to the buyer.
After closing, the buyer called a furnace person to service and look at the furnace, but the contractor saw the furnace and turned right around saying that he wouldn’t go anywhere close to the furnace, as it was covered in asbestos. Several thousand dollars later, the homeowner had the asbestos removed.
Your situation is a bit different in that the ceiling contained the asbestos. But not all popcorn ceilings contain asbestos. You can still find popcorn ceiling tiles sold today and can even finish a ceiling in that manner today without the use of asbestos. The question is whether the home inspector had enough information to alert you to the possibility that the ceiling might contain asbestos. If a reasonable inspector should have known, yours should have told you.
In our prior article, the inspector disclaimed any obligation to look for, identify or even alert the prospective home buyer to the existence of asbestos. And, to that we say, shame on the inspector. We believe that the national organizations representing home inspectors should make it clear that their members should alert homebuyers to this issue and any other issue that might cost a significant amount to repair.
Home inspectors are quick to look at a furnace and let a homebuyer know that they should hire a qualified heating contractor to review issues with the furnace. Why not do the same for asbestos and other issues that some inspectors “exclude” from their reports?
So, what to do now? Try reaching out to the local bar association to see if they have a list of attorneys that handle seller disclosure issues. If not, you should look for a litigation attorney with real estate experience to see if they have handled seller disclosure cases or if they can refer you to an experienced attorney. Once you find an attorney, make sure to ask what type of seller disclosure cases they have handled, how many different cases they’ve worked, whether the case went to trial, and what the outcome was in those cases.
Lastly, you can search your local newspaper for articles that identify seller disclosure problems and see if any attorneys are quoted in those articles. That might also give you a place to start.