Disclosures

There are many details consider when buying or selling a home.   Among them are two dangerous substances that may lurk in your home or a home you plan on purchasing: lead-based paint and radon gas.  The following briefly summaries these issues and explains the seller’s duty to disclose these and other potential problems.

LEAD-BASED PAINT
Regulations to implement the Federal Residential Lead-Based Paint Hazard Reduction Act were issued by the U.S Environmental Protection Agency (EPA) and the Department of Housing and Urban Development in March of 1996.  The purpose of these regulations is to ensure that families are aware of the hazards of exposure to lead-based paint and to inform them of ways to avoid such exposure before becoming obligated to purchase or lease housing that may contain lead-based paint.

Under the regulations, sellers and lessors of most residential housing built before 1978 must attach a standard disclosure and acknowledgement form to all sales contracts and leases, and provide purchasers and lessees with the EPA pamphlet“Protect Your Family from Lead in Your Home” before completing the contract or lease.  Purchasers and lessees will have ten days to conduct an inspection or risk assessment for the presences of lead-based paint before they will be obligated under a contract or lease.

A seller or lessor found to be in violation of the regulations will be subject to Federal criminal penalties of up to one year in prison, civil penalties of up to $10,000 per violation, and triple damages to a purchaser or tenant who brings a successful private suit for damages from lead-based paint in the residence.

RADON GAS
Radon is a colorless, odorless, radioactive gas produced by the natural decay of the elements radium and uranium contained in the soil.  Radon is the only naturally occurring radioactive element that is a gas.  Radon may enter a house through cracks in the foundation or floor slab ordrainage. Exposure has no immediate symptoms, but long-term exposure to high levels increases the risk of lung cancer.

SELLER’S DUTY TO DISCLOSE
The residential Real Property Disclosure Act requires property sellers to give prospective buyers a written disclosure document regarding the physical condition of the property before any contract for sale is signed.  The Act encompasses transfers by sale, installment contract, assignment of beneficial interest, or lease with option to purchase.  It does not apply to transfers of new (residential) construction that has not been occupied.

The law provides a standardized form for the required disclosures.  The form, Residential Real Property Disclosure Report, contains twenty-some questions about the property, including questions about material defects, structural defects, and the presence of lead-based paint and radon gas.

Using the form as a guide, sellers are required to disclose “material defects” of which they have actual knowledge.  Material defects are conditions that adversely affect the property’s value or the health and safety of the occupants.  Sellers are not required to investigate for defects or to amend the disclosure document after it has been delivered to the prospective buyer unless it contains errors, inaccuracies, or omissions they had knowledge of or reasonably believed was corrected, nor are sellers liable for errors, inaccuracies, or omissions in information provided by contractors (such as a structural engineer or pest control inspector) or about matters within the scope of the contractor’s expertise.

Seller’s must complete and deliver the disclosure document to the buyer.  A seller who violates the Act will be liable for actual damages and court costs.  The court may also award reasonable attorney’s fees to the prevailing party.

CONSULT AN ATTORNEY
Whether you are buying or selling or just thinking about it, make sure you are aware of your rights and obligations.  No matter what the circumstances, consult an attorney before you sign any kind of contract, agreement, or disclosure.  Secure your future, call us now.