The Duty to Warn - part 2

This series of articles from the International Association of Certified Home Inspectors (InterNaCHI) has much valuable information that can be adapted for Chimney Sweeps as they perform a check of a homeowner's chimney and venting system. The articles are reprinted with permission. Authors: Ben Gromicko and Kate Tarasenko, with contributions by Mark Cohen, Esq., Joe Farsetta, Nick Gromicko, and the members of InterNACHI.

The Seller’s Disclosure

The duty to warn and a seller’s disclosure address different legal concerns but the types of potential hazards they cover can overlap considerably. While a duty to warn is designed to prevent physical injury (and subsequent legal action and damages), a seller’s disclosure is designed primarily to address a home’s value, both its selling price and its resale value.

There are six general categories that should be included in all seller’s disclosures, as they can significantly affect a home’s price:

1. termite/wood-destroying organism infestation;

2. mold and/or damage due to moisture intrusion;

3. lead-based paint;

4. natural hazards;

5. general repairs; and

6. infamous or notorious past.

 Again, these disclosures cover items that the homeowner/seller either knows about or should know about, and the breadth of these categories may vary by state.

Termite/WDO infestation is not always obvious, and the presence of such pests may not be detected until the damage to the home's structure is. However, if a home has been treated for infestation by termites or other wood-destroying organisms, most states require this disclosure for a sale. In areas where termites or other WDOs are a common problem, this disclosure doesn’t have to be a deal-breaker, which is why InterNACHI recommends a WDO inspection, along with a Move-In Certified™ Seller Inspection for all home sellers.


• Most homes have some evidence of mold, but the level of moisture intrusion—whether past or active—can mean the difference between a smooth home sale and a costly lawsuit after the fact. Most moisture intrusion is easy to spot, such as a leaky roof, a musty-smelling basement, or bubbling paint on damp drywall. Unfortunately, many home sellers whose homes have serious water-intrusion problems attempt to hide them, as this is the Number One reason new homeowners sue their homes’ former owners.


•Homes in the U.S. built before 1978 — before lead-based paint and related products were outlawed — may have lead paint at the exterior, interior, or both. According to the Environmental Protection Agency, lead that is not disturbed does not pose a serious hazard, but in households with small children, who may explore and ingest old and chipped paint, lead can be a serious health hazard that can result in severe, long-term neurological damage. Sellers of older homes are required to disclose any known lead-based paint in the home, as well as extend the prospective       buyer a 10-day window to test the home for the presence of lead. The failure to disclose the known presence of lead that results in a lawsuit can trigger an automatic award of treble damages.
     

Natural hazards cover homes located in floodplains, along earthquake faults, and similar natural dangers. This disclosure is designed primarily to give prospective buyers the heads-up for the need to obtain appropriate additional homeowners insurance coverage or specific riders.


General repairs is the broadest category of disclosure and is meant to include major repairs and unique maintenance to a home’s major systems and components, as well as structural fixes, including those required because of weather-related damage and moisture intrusion. While this category may result in litigation determined on a case-by-case basis, the general rule here is that if you would want to know about it as a home buyer, you should disclose it as a seller. 


• Not all states have laws regarding a home’s infamous past, but if some previous undisclosed activity or history significantly lowers a home’s resale value (or jeopardizes its ability to be resold), a lawsuit may be the only way that a seller can recover on a poor investment. This category ranges from a home thought to be haunted, to a home where a murder was committed,  and the more prevalent problem of a home used to manufacture methamphetamine. This last type of home poses more of a physical danger than one of notoriety, since the chemicals used to manufacture meth can permeate structural components and remain permanently, which can lead to severe neurological, respiratory and other health hazards for a home’s future occupants. 

A Seller’s Inspection

InterNACHI strongly urges home sellers to obtain an inspection prior to even listing their home for sale. A Move-In Certified™ seller inspection informs the seller of any defects or problems so that they can be addressed before prospective buyers discover them. Sellers can then take the time they need to obtain reasonable repair estimates to address defects so that they don’t become stumbling blocks later. A seller’s inspection is also a demonstration to prospective buyers that the seller is dealing in good faith and is interested in providing full disclosure as to the home’s condition, including repairs already performed as a result of an earlier seller’s inspection. It has the added advantage of helping the seller obtain his asking price.

Home inspectors who don’t currently offer seller’s inspections should avail themselves of this built-in real estate marketing niche. Sellers should provide copies of their inspection report, along with receipts for repairs, to all real estate professionals and prospective buyers who tour their home.

 

Reprinted with permission from the International Association of Certified Home Inspectors (InterNACHI)

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