Real Estate Q&A: Vermin disclosure
YOUR JOURNEY HOME
Free Press Real Estate Columnist
Q. I was at a party last evening and a fellow was telling stories about his recent home purchase and all the cockroaches he found in the house after closing and starting his move in. Surely the seller knew about the pests, wouldn’t you think? And, if so, was the seller not obligated to tell the buyer prior to closing about the presence of the cockroaches? This guy did not say there were some cockroaches; he said there were enough that, if they all cooperated, they could have carried the house away on their backs.
A. It sounds like the fellow is a great story teller and the house had a major infestation. As for the seller telling the buyer about the roaches, one might presume it would have been revealed in the Seller’s Property Disclosure form.
In Colorado, there is a legal doctrine of “Implied Habitability,” which essentially states a residential property will be livable, structurally sound and functional unless disclosed to be otherwise. It is also interesting to note that the majority of real estate lawsuits involve property disclosure issues.
You did not mention if the buyer used a Realtor, or if the home he or she purchased was listed with a Realtor or was For Sale by Owner. If the property was listed with a Realtor and the seller had lived in it anytime during recent years, the listing Realtor would most likely assure that the seller filled out a property disclosure form. Many, and maybe most, realty companies want to limit their potential liability in any disclosure situation by requiring the seller give written documentation. A buyer’s Realtor, likewise, would most likely have insisted on the buyer’s behalf that the buyer receive written property disclosure.
The next question would be — what did the seller disclose? In the “Structural Conditions” section of the standard disclosure form, question #3 asks if there is “Damage due to termites, other insects, birds, animals or rodents.” That is the closest question on the form to “Do you have a cockroach infestation problem.” As the seller’s Realtor, if I knew of the roaches, I would suggest they first take care of the problem before listing the house for sale, then disclose the roaches and the extermination efforts. In that way, the seller let two facts be known — the problem and their action to resolve it.
Not being an attorney or a pest exterminator, I cannot make a definitive statement about whether the roaches must be disclosed. The disclosure form references “damage” caused by insects or rodents and I do not know enough about roaches to know if their presence in large numbers can or does cause structural damage.
Please forgive me for being vague on the question. Legal advice might best be sought to decide about disclosing the roaches if there is any doubt in a seller’s mind about whether or not to disclose.
The take-away lesson is that if the seller does disclose, they are complying with the law and they are covering any responsibility or liability they may have, in this case for the insects. If they do not disclose, they may not scare away a buyer who may purchase the house right away; however, after closing, that buyer might pursue legal action against the former property owner to be reimbursed for extermination costs, repairs, legal damages against the seller and attorney’s fees.
The buyer, however, should also thoroughly inspect the property with the seller and any inspectors for, among other things, “the presence of rodents, insects and vermin.”
Doug Van Etten is a local Realtor with Cherry Creek Properties, a Colorado-wide realty firm that recently opened a Grand Junction office. Van Etten has been helping home buyers, sellers and investors accomplish their real estate goals since 1992. To contact him regarding this article, to suggest questions or topics for future articles; or for help with your real estate needs, email DouglasVanEtten@gmail.com.
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