A Port Angeles homeowner recently discovered asbestos in the material used in her popcorn ceilings. When she purchased the home that was built in 1975, she had no idea that the home had health endangering levels of asbestos.

People who have been exposed to asbestos in factories and shipyards and who have inhaled high levels of asbestos fibers are subject to an increased risk of lung cancer, including mesothelioma, a cancer of the lining of the chest and the abdominal cavity, and asbestosis, in which the lungs become scarred with fibrous tissue. The risk of lung cancer from inhaling asbestos fibers is greater for those who smoke. People who get asbestosis have usually been exposed to high levels of asbestos for a long time. The symptoms of these diseases do not usually appear until about 20 to 30 years after the first exposure to asbestos.

How could this happen to a home buyer?

The homeowner said she had a real estate agent representing her, and she paid for a home inspection, but she felt like “no one was watching out for her interest.” Estimates for cleaning up the asbestos and making her home safe to live in start at $5,000. After the down payment, loan costs, other closing costs, and with the “surprises” that already have cost her $10,000 before she could move into her home, an additional $5,000 is taking a tremendous toll on her.

Who is watching out for a buyer? Here are two traps for the unwary purchaser:

1. State law takes the real estate agent off the hook as far as the seller’s representations in the Form 17 (Seller’s Disclosure Statement) are concerned (and in estate sales like this one, a Form 17 is not required), and
2. Home inspectors have an escape clause in their contract, which states that they are not liable to the purchaser for such things.

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The hot topic of the day is the new change in the Purchase and Sale form in Washington and the seller’s disclosure requirements. [Read the previous article explaining the law and issues of negligent misrepresentation] A Realtor asked if the Form 17 Seller’s Disclosure Statement offers any real protection against negligent misrepresentation.

Good question. My thinking is that it offers some, but very little.

When the law was passed back in 1995, I remember saying that it won’t have any effect on whether a seller misrepresents the condition of a property. A person who lies will also lie on the form 17, and a person who tells the truth will not lie on the form 17. But that didn’t change the law governing seller misrepresentation; it only required the seller to complete a formal questionnaire about the property, which supposedly would give the buyer adverse information if there was any. The form 17 also didn’t have any effect on buyer remedies (although that was the intent), whether the suit was against a seller for intentional or unintentional misrepresentation. The same prima facie elements must be proven now in the same way as before the form 17 was required.

So what has changed? Read more to find out.

Here’s what has changed.

The form 17 gave buyers another document to use in court against a seller, even if the seller was totally honest. For example, there’s a question that asks if the septic system is entirely within the property boundaries. Normally an owner would have relied upon a licensed surveyor, if he had a survey done (not required in Washington to buy or sell), and normally an owner would have hired a licensed septic system installer (if he was the one who had the system installed). If the seller answers, “Yes,” and it turns out years after closing that the surveyor screwed up and the septic system is on the adjacent property by six inches, the seller made an unintentional misrepresentation on form 17. In court (or in a deposition or interrogatory), the seller gets nailed by the question, “Did you answer this question ‘Yes,’” and after he responds that he did, the next question, “You know now that the septic system is actually six inches on the neighbor’s property. Right?” Then after the “yes” answer, the killer question, “So your answer on the form 17 was incorrect, right?” The only answer for the seller on the witness stand under oath is, “Yes.” Of course, there is a lot of hemming and hawing by the witness, but ultimately the judge will force him to answer yes or no to all these questions.

A sharp lawyer will want to interject in this discussion that the form 17 is only the seller’s reasonable understanding of the condition of the property, not a guarantee. That’s a good discussion for a law professor in a classroom, but not in the real world where finely tuned legal arguments might get you off the hook. Believe me, in a real trial, the above guy gets nailed to the cross.

So, how would a reasonable seller who does not want to get sued long after closing the sale answer such a question about the septic (and many other issues)? He would have saved himself much stress, attorney’s fees, and perhaps the entire lawsuit if he had simply answered the question with a “don’t know.” Then he could have added a narrative explanation, if he wanted, that explained he did not personally know if the septic system was “entirely” within the boundaries, that he hired experts to do the work, or that he purchased the property as it is, but that he personally has no absolute knowledge of the correctness or incorrectness of the boundary lines, or words to that effect. Of course, in public attorneys cannot and would not advise clients to do anything but tell the truth on the form 17, but in private behind closed doors, they must have a confidential conversation about what telling the truth could do to them. Telling the truth in this current legal environment in Washington could get a person crucified in court, even if they never lied in their entire life and did not lie on the form 17. Remember, it is unintentional and completely innocent misrepresentations that I’m talking about here, and a seller could find himself getting raked over the coals in our injustice system for several years. So in his confidential discussion with his client, the attorney will hint that the seller is well advised to fudge and answer with a safe “don’t know.” No attorney would admit this, but if you were giving a client honest and confidential advise, would you not have a duty to discuss this with the client, and of course, leave it to the client to decide how to answer his form 17?

It’s a bit ironic that the state statute creating the form 17 states that the form 17 is not part of the parties’ contract to purchase the property, yet it is used in trial all the time in misrepresentation cases, and the new purchase and sale agreement incorporates the form 17 into the contract (not with the words “incorporates here” but certainly by reference and creating contract and tort remedies for a buyer against a seller by using the form 17).

It’s always been difficult to prove actual knowledge and the intent of a seller in a misrepresentation case. What the seller did or did not know must be proven, and you really need extrinsic evidence, since you can’t get inside a seller’s head and lay that evidence out at trial. The form 17 was an attempt, feeble though it is, to protect consumers, but it has failed and only created more confusion and litigation.

As with most bad law and good intentions, the only real winners here are the lawyers. I made tens of thousands of dollars myself as a lawyer litigating misrepresentation cases. That reminds me, there is a silver lining in all of this. This latest brouhaha about seller misrepresentation and the new Purchase and Sale Agreement will turn out to be silver for practicing attorneys. On behalf of those attorneys, I would extend a hearty thank you. Attorneys will ponder that eternal question again, “Let’s see, what kind of boat do I want?” ( P.S. I’m really glad I’m retired from law practice.)

If I may offer some sarcastic humor with a rhetorical question, wasn’t it attorneys who created the form 17 statute, and wasn’t it attorneys who decided Alejandre v. Bull, and wasn’t it attorneys who came up with line 9 in the new Purchase and Sale Agreement, and isn’t it attorneys who are going to litigate this issue in the months and years ahead? Hmm. Shakespeare had a humorous solution regarding lawyers, which I’m afraid of quoting here, lest I get sued. Hint: Google this exact clause without the quotes “Shakespeare lawyers” and read to first result, but if you tell anyone you got this hint from me, I’ll deny it under oath.

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Negotiating May Be Like a Cat and Dog Fight Now

There’s a new Washington Supreme Court case that changes the way buyers and sellers will negotiate. The case is Alejandre v. Bull. This case addresses the hottest issue right now in the State of Washington for Realtors, buyers and sellers. It involves the issue of unintentional misrepresentation by a seller and what remedy a buyer will have. This is especially hot, because the brand new Northwest Multiple Listing Service (NWMLS) Form 21, which is the Purchase and Sale Agreement used in almost all of Washington effective October 15, 2007, includes a check mark to include or not include a remedy for the buyer to sue the seller for unintentional misrepresentation.

The actual language is, “Disclosures in Form 17: Buyer will ___; will not ___ have a remedy for Seller’s negligent errors, inaccuracies, or omissions in Form 17.” Form 17 is Washington’s Seller Disclosure Statement.

Some have mistaken what this is all about, which is indicated by a response you will hear today by many in and out of the real estate business, “Well, seller’s should not be allowed to lie.” Another response is, “If the seller isn’t lying, what’s the problem?” That’s NOT what this is about. Those kinds of statements miss the whole point. Of course, seller’s should not lie. If the Alejandre case and the new language in the Form 21 was just about catching liars, we would all be rejoicing.

This issue casts a very large net, and will capture honest and completely innocent sellers who never lied and had no way of knowing about a hidden defect or problem inside their septic, or inside a wall, or under their foundation, and so on. You get the point. But this new language gives them the right to sue, and maybe win a huge judgment against an honest and completely innocent seller.

This ought to be a happy negotiating item between buyers and sellers, thank you very much lawyers and the NWMLS. (I’m a retired real estate attorney, but I would not have included this new remedy in Form 21.) There is a lot of misunderstanding and confusion about what this case means and how to handle the new Purchase and Sale Agreement. Realtors are challenged on how to explain this new option to buyers and to sellers.

Now a seller has to agree in writing with a buyer that he can be sued not only for breach of contract, but also “in tort” for unintentional misrepresentation. A seller may not actually have been in side his septic tank, and he may not actually know if there is a latent defect. Now, if the seller agrees to allow the buyer to sue him for any defects, even those he didn’t know about in his septic system (or elsewhere), he can be taken to court and everyone can pay the attorney’s $30,000 to $70,000. What fun!

My guess is that sellers will NOT agree to this (why would they?), so we will simply go back to the contract without this additional remedy for the buyer. The other amazing consequence of all this (as if it wasn’t predictable) is that sellers are going to make sure they don’t commit themselves to a “yes” or “no” on the Form 17 Seller’s Disclosure Statement if there is any possibility they may be sued. The safe answer may simply be an innocent “Don’t Know,” which oddly enough will actually help a seller from being held liable for misrepresentation. How’s that for gutting the State Legislature’s intent in creating the disclosure law?

Here’s my prediction:

1. Sellers will fudge on Form 17 statements, marking “Don’t Know” whenever they can to protect themselves; or
2. Sellers will simply require the buyer to waive the Form 17 or they won’t sell the property to that buyer ; or
3. Sellers will not agree to a buyer’s demand to check line 9 on the P&S giving the buyer the right to sue for unintentional misrepresentation; or
4. Sellers will do both 1 and 3 above.

How’s that for consumer protection! You’ve got to hand it to the lawyers and the NWMLS for destroying consumer protection in such a creative way. On top of that, they have confused the heck out of Realtors, buyers and sellers, and everyone in between. Even the lawyers across the state are in a frenzy writing each other legal memorandums, politely calling each other names.

Who has the toughest job in all of this? I’ll tell you who. The Realtor. How does a Realtor explain any of this to his buyer or to his seller? May I wish all you Realtors good luck in coming up with a script that will keep you out of jail. (Oops! I am a Realtor! Eghad!)

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