DEAR BARRY: Our home is currently for sale and is located across the street from a landfill that is not currently in operation. There is a tree buffer at the front of that property, so it is not apparent that it was a waste site. Our real estate agent wants to disclose that the landfill is there because there are plans to reopen the facility. Since it is not currently in use, do you think we should disclose this to prospective buyers? –Terri
DEAR TERRI: Disclosing a landfill across the street from your home is a legal requirement, as well as a moral obligation. Consider how you would feel if someone sold the home to you and withheld the fact that the adjacent landfill was about to resume operations. Think of the noisy trucks rumbling up and down your street day after day. Think of the odors that might become part of the neighborhood environment.
And if these circumstances don’t convince you, consider the possibility of a lawsuit from the buyers when they realize that you withheld that kind of disclosure.
There is a simple answer to every question that involves whether or not to disclose. That answer is, "Disclose!" We live in a very litigious society. A primary purpose of disclosure is to avoid liability. Remember this when you fill out your disclosure statement.
Tell the buyers everything a person could possibly want to know about the property. Tell them what you would want to know if you were buying the property. Not only will you avoid the cost and stress of courtroom trauma, you will sleep with a clear conscience after the close of escrow.
DEAR BARRY: Our home inspector did not report a rotted window sill that was fully visible, and this turned out to be the tip of a much larger problem. Leaking at the sill led to internal damages that now require $10,000 in repairs. We hired our home inspector to find problems of this kind. Had we known about this damage, we would not have bought the property. Therefore, can we hold the inspector liable for the repair costs? –Claire
DEAR CLAIRE: There are several conditions that can affect the home inspector’s liability. The first is the inspection contract that you signed prior to the inspection. Most inspection contracts limit the inspector’s liability to a specific refund amount, sometimes as little as the inspection fee itself. Some contracts absolve the inspector of liability if the damages are altered, removed or repaired before the inspector has a chance to reinspect the problem. My advice is to read the contract and then to contact the inspector. Inform him of the problem and ask that he reinspect it.
Another consideration is whether the inspector carries insurance for errors and omissions. Many home inspectors cannot personally afford a $10,000 claim. In such cases, insurance makes a big difference.
Keep in mind, also, that the sellers of the property may have been fully aware of the damage but failed to disclose it. Therefore, you should also notify the sellers about this problem.
