I’m Eric Lanigan with Lanigan and Lanigan attorneys in Winter Park. I want to talk for a moment about disclosure of mold issues in homes.
Florida Homes May Have Mold Damage
I recently read an article and the author estimated that as many as fifty percent of the homes in the south have or have had some level of mold damage. Now the mold you always hear about and you read about is black mold and while it certainly gets the most attention any mold damage can be a big expense as well as a health hazard. The problem with the mold is kind of like sinkholes and termites. Nobody wants to talk about it. Everybody wants to skirt the issue.
Just the other day I was reading an article from a real estate magazine which was really the motivation for me to talk about this subject today and the article was about how realtors should address the issue of mold damage history in a house. And the article said that you never refer to mold never use the word mold refer to things like musty odor and dampness and discoloration. In other words just say enough to cover yourself that you brought up sort of the subject but not enough to kill the deal.
Home Inspection Contracts Have Exclusions
Many times people say to me well you know I’m going to have a home inspection or I had a home inspector go through the house. The key point there is how much can you rely on those. You need to go over very very carefully exactly what the inspector will actually inspect. I have seen many where they have exclusions where we do no inspections and we render no opinion as to mold issues. Some will have other exclusions. Some of them have so many exculpatory clauses that in the end they’re not liable for anything. You wonder well what are they actually doing and the answer is well pretty close to nothing. Because they certainly aren’t making themselves liable or putting themselves on the hook for anything.
Who Hires the Home Inspector
The other thing is the home inspectors are almost always chosen by the realtors. Very rarely do I ever find out about someone who bought a home and said well I want so and so to be my home inspector. It’s always whoever the realtor brought to the table and what that usually tells you is who does that realtor have a good relationship with. And what’s one of the most sensitive things that a home inspector has to be careful of and that’s not to be branded a deal killer. Because if you’re branded a deal killer in the real estate community you’re going to be looking for a new career because your days as a home inspector are over.
So, there again they have to be very careful what they say because deep down inside they know they’re part of the equation to make the sale happen and there’s nothing wrong with everybody wanting the sale to happen. What’s wrong is when the sale happens despite problems that need to be addressed. It doesn’t mean the sale doesn’t happen it means there are things that the buyer and the seller need to address before that sale is finally consummated.
Buyer Beware in Real Estate Purchases
So, what do you do in all of this? There’s an old Latin phrase caveat emptor let the buyer beware which has never been more applicable than it is in real estate transactions especially real estate transactions in the state of Florida. Some states have wiggled away at caveat emptor. Florida has not done much. And I’m not necessarily a proponent of the government coming in and regulating every little word and sentence that people say. I think there’s a validity to we’re all grown ups let’s take care of ourselves. Let’s do what we need to do and don’t always think that some governmental agency or somebody else is going to take care of us. So how do you go about taking care of yourself?
I would say right away when you start working with a realtor whether you’re the buyer or the seller but especially if you’re the buyer I suggest that people put the nature of that relationship in writing. For instance I would spell out exactly what is the standard of care that you expect for a realtor. And you don’t need any precise legalese. I think a very good standard of care is to say that you expect the realtor to pursue all issues related to any real estate transaction with the same degree of scrutiny as they would apply as if they were buying that property for themselves or for a member of their immediate family.
Ask Questions About Disclosure Form
The other thing if there are any disclosures made if somebody says well there seems to be a musty odor in the house well you know why. Why is there a musty odor? Start digging. Start asking those questions. Make people answer those questions. Why is there a musty odor? Have you ever had to scrub the walls down with bleach or when was the last time the walls were repainted? Who did the painting? Find out all of those things. And just like a lawyer does in a deposition you start through question and answer question and answer you peel away the layers and the layers of the onion until you get down to the information that you want and you need.
So as you’re going through the process you just need to dig, dig dig and go through the process and be constantly skeptical and suspicious. As lawyers often say hope for the best plan for the worst. If you take those steps you remember the phrase caveat emptor and you have that phrase going through your mind as you move through every phase of the transaction then there’s an extremely high likelihood that whatever problems there are they will get resolved before you ever get to the closing table.
Again, I’m Eric Lanigan with Lanigan and Lanigan attorneys in Winter Park.