Not disclosing fire damage is professional negligence
DEAR BARRY: After we bought our home, our contractor discovered that there had once been a fire in the attic. He said the wood framing was charred black. When we asked our real estate agent about this, he said that old fire damage had been disclosed to us on the day of the home inspection.
No disclosure about fire damage is listed in the inspection report or the sellers' disclosure statement, but the agent, the seller and home inspector now insist that we were informed verbally of this condition. What good are written disclosures, if they can be overruled by these kinds of questionable claims? — Bridgette
DEAR BRIDGETTE: Written disclosure is the basic substance of every residential real estate transaction. This fact should be indelibly etched into the minds of every home inspector and Realtor. Oral disclosure, on the other hand, is like vapor on a windy day, because no one can prove with certainty what was or was not said by the parties involved. Written disclosures are indisputable. If verbal claims were given priority over written ones, disputes and suits would become far more common than they already are.
For home inspectors, the inspection report is the formal, final and factual declaration of what was discovered, in total, about the property. This is the standard of the home inspection industry. What is written overshadows what anyone might otherwise claim to have said. Furthermore, any disclosure worth stating verbally necessarily belongs in the written report.
When a home inspector discovers evidence of fire, disclosure to the buyer is imperative, even if there is no serious damage to the structure.
If the damage is superficial, then the report should state that evidence of a fire was observed, that damage does not appear to be significant and that the local fire department should be consulted for pertinent documentation. On the other hand, if serious fire damage is observed, the inspector should recommend further evaluation and repairs by a licensed general contractor.
In either case, a home inspector who observes charred framing in an attic and does not include that information in the inspection report is guilty of professional negligence.
The same disclosure requirement applies to Realtors. Within the real estate industry, there is major emphasis on the need for disclosure of all known conditions that would be of concern to buyers. No aspect of the real estate business has been so thoroughly driven into the minds of brokers and agents since the late 1980s. Realtors must conduct what is known as a “due diligence” inspection as part of every transaction, and the findings of these inspections, just as with home inspections, must be written, not oral.
Additionally, sellers are required to submit written disclosure statements, listing all conditions that would be of interest to buyers, and sellers' agents are required to advise their clients accordingly.
In your case, all three parties have apparently failed to provide written disclosure of a significant condition: evidence of fire in the dwelling. Claims that oral disclosures were made are suspect at best. Even if such disclosures took place, they would not satisfy the legal disclosure requirement.