Full disclosure will greatly reduce, not eliminate, liability

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Full disclosure will greatly reduce, not eliminate, liability

Chicago Daily Herald - Chicago,IL*

By Barry Stone | Access Media Group

Published: 7/5/2008

http://www.dailyherald.com/story/?id=214599

Q. Now that I'm selling my home, I'm concerned about improvements

that were done without building permits. In some of your articles,

you stressed the importance of disclosing non-permitted work to

buyers. But will this disclosure really protect me from liability?

A. We live in a sue-happy world, with no absolute protection from

legal liability. Regardless of what we do, we can be sued for doing

something wrong, and we can be sued for doing nothing wrong.

Fortunately, we can take steps to reduce our levels of liability,

but we can never eliminate that liability completely.

When selling a home, full disclosure of non-permitted work reduces

your liability, but the way that you frame those disclosures can

make a critical difference. A common mistake that many sellers make

is to state or imply that all work was done correctly or " according

to code, " even though it was done without permits. Such statements

can get sellers into deep trouble.

Unless sellers are professional building inspectors, they have no

idea whether improvements were done according to code. Building

codes are voluminous and exhaustively complicated, and only the most

informed experts are totally familiar with their intricacies. When

disclosing that work was done without permits, you should state

that " no guaranty is made regarding compliance with building codes. "

You should also recommend that buyers hire a qualified home

inspector to evaluate the condition of the improvements, as well as

the rest of the property. With that kind of disclosure, you should

be reasonably safe from complaints after the close of escrow.

Q. In one of your articles, you faulted a home inspector for failing

to disclose mold that was present in a home. As a professional home

inspector, this misinformation concerns me. Your readers should be

told that mold and all other environmental issues are not covered

under the standards of practice for the home inspection profession.

No home inspector is required to investigate or report on such

things, and your readers should be informed of that fact.

A. Home inspectors are not required to disclose mold infection in a

home. A contrary impression from a past article was a

misunderstanding. Environmental hazards are not within the scope of

a home inspection, and home inspectors are not expected to report on

such issues. But that does not let home inspectors off the hook

completely. So let's have some clarity on this issue.

In cases where mold is visible on accessible surfaces - beneath a

kitchen sink, on a bathroom windowsill, in a plumbing access, or the

corner of a closet - what should a home inspector do? Should the

inspector ignore that condition and say nothing about it, simply

because mold is not within the scope of the inspection? To do so

would constitute professional negligence. Instead, the inspector

should point out the " stains " and recommend further evaluation by a

mold specialist. If that was not clear in the article you read, then

this one should provide that clarity.

Barry Stone's column appears Sundays in Homes Plus. E-mail questions

to him at www.housedetective.com or write AMG, 1776 Jami Lee Court,

Suite 218, San Obispo, CA 94301.