undisclosed asbestos

oc_dreamer

New member
I'd like to get your opinions about this situation. I bought a home in Irvine in January 2017. The home was built in 1977 and still has the original furnace/blower unit, which just died last month. I had several HVAC contractors come in to give me estimates to replace the furnace, and they all made the same observation: the ducting in the attic is asbestos and needs to be removed. It's going to cost me about $3k extra to remove and replace the all the asbestos ductwork in the attic.

During the purchase of the home I was not informed about any asbestos in the house. On the standard "Real Estate Transfer Disclosure Statement" that the seller and I signed, there are checkboxes to indicate if the seller is aware of any substances which may be an environmental hazard, such as asbestos. Neither the "yes" or "no" boxes are checked and nothing is written about asbestos in the explanation area. All the other items have either the "yes" or "no" box checked. The hazardous materials item is the only one left blank.

The seller and former owner of the house is a real estate agent. She handled both sides of the transaction and I did not have my own buyer's agent. I did have the house inspected by Elite Inspections (chosen by me) but they did not tell me about the asbestos ductwork. I believe that the seller knew about the asbestos because she had the AC components (condensor and evaporator) replaced. The HVAC contractors have all expressed surprise that the furnace was not replaced with the AC, and they believe an unlicensed person replaced the AC.

What do y'all think about this situation. Should I contact the seller and ask her to reimburse me for the cost of replacing the asbestos ductwork?
 
You can ask but likely won?t get anything. Probably too hard to prove she knew even though she probably did and it?s common knowledge that these old systems are all wrapped in asbestos.

You can try to take her to smalll claims court if you have the time. Not sure how you prove she knew though. 
 
Thanks for the reply qwerty. Yeah I'm not hoping for much here, but I think I might contact her and ask. Doesn't hurt to ask, right?

I'm attaching a scan of the disclosure page. Notice how she left item C1 unchecked? Kind of sneaky...
 

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For $30 I would send in a sample to Western Labs to be certain.  In 1977 asbestos was either out or on the way out for most things.

Did you not get a home warranty when you bought the house?  It might cover the HVAC, which would free up money to pay for asbestos removal.  $3000 seems like a lot.  That's probably an extra day of work, mostly for double bagging the area for containment.  Consider calling a licensed asbestos abatement company and getting a quote directly from them just for that part of it.  I had some ceiling tile removal done, and it cost just under $1000, including a rush fee.  I was working on the roof the whole time, and I could hear that poor guy for a day and a half, standing on a bench in a sealed up room, chipping mastic off my ceiling.  He hardly took any breaks.
 
Sounded like the seller of the house is an agent that handled seller and buyer (dual agent) then obviously looked out for own interest. Probably didn?t even mention warranty at all.

I?d contact and ask, and if not, perhaps small claims?
 
The seller has two issues to deal with here.  First the seller is also the listing agent so ignorance would not be a plausible excuse as it relates to disclosure issues such as asbestos.  As you pointed out, the omissions on the disclosure form appear to be intentional.  If the seller/agent is not cooperative with your request I would file a complaint with the DRE.  This might have some consequence against her real estate license.

Second, if the seller/agent also represented you, then she had certain fiduciary responsibilities to you in this dual agency scenario.  Again, this is something that the DRE would not look favorably on.

Your home probably contains asbestos as it was built in 1977.  In fact, it is not uncommon to find asbestos in parts of residential dwellings into the early 1980's.  You may also have asbestos on your ceilings as the asbestos ban for the material used back then for popcorn ceilings did not take effect until 1978.  You may want to have testing done on your walls and ceilings in addition to the ducting material.  Once you have the test results then you should approach the seller/agent.

I would reach out in writing to the seller/agent first before going the route of small claims court.  If I were the licensee, I would be wanting this resolved quickly.  If she is not a broker, her broker may want this resolved as well and may lean or her.  If that does not work, then small claims court would be a good option.
 
If the seller/agent truly did not know whether asbestos exists, she should have disclosed that she had not investigated the matter but that many homes built during that time contain asbestos and that buyer should make his/her own investigations into this matter.  Without such a disclosure to you, I think this seller acting an the agent does not appear to have a strong defense.
 
Couple things to consider.  If she didn't have it tested, then she doesn't know.  Suspecting and knowing are different. 

Here's a simple question, what did your home inspector say about the ducts?

Lastly $3000 for replacing the ducts.  Note it's remove and replace.  You're putting in a new HVAC and the contractor will all tell you to redo your ducts, JImHo, asbestos is just a goad to push. 

You need to ask yourself and your contractor before they look at it about replacing the ducts. They'll tell you to do it and give a bunch of reasons.  One of them is oh yeah, all the old tape often had asbestos. 

So you need to ascertain if your contractors are playing straight up or if their playing a fear card.  Get a new contractor if they're fear carding it.

 
irvine buyer said:
If the seller/agent truly did not know whether asbestos exists, she should have disclosed that she had not investigated the matter but that many homes built during that time contain asbestos and that buyer should make his/her own investigations into this matter.  Without such a disclosure to you, I think this seller acting an the agent does not appear to have a strong defense.

I don?t think anyone makes this disclosure in the way you suggested. You either know about or you don?t. No gives a warning that there could be something wrong based on the time it was built. 
 
If you talk to any good real estate attorney, they will always advise you to disclose and advise a buyer to investigate.  It covers your behind in events like this.  As a real estate broker, I can attest to the fact that this subject is not only covered in the coursework required to become a salesperson or broker, but it is also part of the mandatory continuing education that all licensees have to take.  Also in the coursework is subject matter relating to asbestos and other hazardous materials, as well as disclosure requirements.  Claiming ignorance is not a good defense.


 
So here is a little update: I emailed the seller and, without asking for money, I informed her about the situation, pointed out that she left item C1 blank on the disclosure form, and asked her if she knew about the asbestos. I also included an estimate of what it will cost to replace the asbestos ducting. In her reply she stated:

"In regards to your question on the Disclosure  Statement,  item C1....  I did not answered  it, because I did not know the answer.'

I looked up her license number on the California Bureau of Real Estate website (www2.dre.ca.gov) and it says that her License Type is BROKER.

On the form contract "California Residential Purchase Agreement and Joint Escrow Instructions" she checked the box on item 2B to indicate that she was the agent of "both the Buyer and Seller".
 
Just want to further add that I appreciate everybody's responses here. I especially like irvine buyer's idea of going to the DRE. I may end up going that route...

Although it's kind of a side issue, here are some details about the furnace situation for those who asked: when the furnace died last month, we contacted Home Warranty of America (HWA) because a warranty was included in the purchase of the house. For $60 they sent out a contractor who determined that the furnace must be replaced because it is "not safe for further use." We had considerable difficulty dealing with HWA and their contractor. After a few weeks of not getting anywhere with them, we finally decided to accept the pathetic sum of $537 to settle the warranty claim.

With HWA and their contractor out of the picture, we had 3 different contractors of our choosing come look at our furnace setup. All 3 of them pointed out the asbestos ducting and said it should be removed because it is broken in several places. Also, the vent pipe is a "transite" pipe which is made of asbestos and must also be replaced.

When we bought this house we understood that it is older and would need some work. We have no problem paying for that because we saved quite a bit of money by buying an older house. The issue is that the presence of asbestos was not disclosed. If that had been disclosed to us, we probably would have bought the house anyway and addressed the situation before moving in. I understand that sellers are not required to remove asbestos, but they are required to disclose it if they know about it. Given the facts that she is a broker, that she had the AC replaced (but not the furnace) and intentionally left item C1 blank on the form, I believe that she did know.
 
Given her response to you,I believe she knew.She had a fiduciary responsibility to you as your agent and also as "the agent of the seller" she had a legal,professional and ethical responsibility to disclose .Disclosing everything else but "omitting" the asbestos seem very fishy. Like someone said on this post,she can not claim ignorance.
 
The neighborhood is Orangetree behind Irvine Valley College. We are actually very happy with the house and the neighborhood, and we are glad that we bought it when we did. The prices in the neighborhood seem a bit lower than the rest of Irvine. I'm guessing that is because the houses are small and many of them are rentals, but the renters seem to be mostly older long-term tenants.

This morning I filed an online complaint against the seller/broker with the Better Business Bureau. I know they don't have power to compel her to do anything, but that seemed like a reasonable first step. I don't think I'm going to get anywhere dealing with her directly.
 
Not sure the BBB will do much.  If the seller/agent is claiming no wrongdoing, then small claims is really your only option.  Filing a complaint against the agent with the DRE will be a good start in the event you need to try to recover your damages from the DRE's consumer recovery fund.  Remember that you have to suffer damages before you will be awarded anything.  Just because you might have to spend $3K remediating asbestos won't get you an award for that amount of money.  You need to spend the money and then go to small claims court and seek recovery of the money spent abating asbestos as your damages.  If you get a judgement in your favor my guess is that you will get paid from the seller/agent as the person probably has enough assets to satisfy this small amount.  Considering the small amount involved, you may even get approached by the seller/agent to settle this before it goes in front of a judge.

Keep in mind I am not an attorney and am not dispensing legal advice.  If you are seeking legal advice, AVVO has lawyers who use the site that offer pro-bono answers to questions posted.  Link is below. There are other services online as well.
https://www.avvo.com/real-estate

 
So to sum up...the seller omitted an answer on a disclosure and, being a realtor, should have known better.  But you have no actual proof the seller knew there was asbestos in the house?  Had they actually checked a box, the answer would have been "no", per the follow up email.  What is the angle here, and what do you expect the outcome should be?  How would your situation be any different today if you had used your own agent in the purchase?
 
For us, seller specified NO on Item 1 but home inspection revealed some exposed asbestos in the ducting and furnace pipe. We raised it as something we wanted to be addressed by the seller but their take (and that of their agent) was that it was standard practice by the builder and as such not something they would do. I hired an abatement company and I expected some dudes to show up in hazmat suits to get it all out. It was just a pair of guys in jeans and t-shirts, where the main precaution they took was to double bag and tape up the garbage. Most of the cost was actual (and legal) disposal of that stuff. I had someone come up and do a full attic clean up since I also wanted to replace 30 year old blow-in insulation with baffles up there. They didn't seem too phased about prior removal of asbestos ducts. Knowing it was there, at least I had the choice of getting that done while not living in the house yet. After reading up more on this topic, I found out that sporadic exposure to that stuff is not nearly as bad as it is made up to be. The mesothelioma lawyers did a good job at scaring us all, but that's only because it is a signature disease for asbestos and lots of $$$ in their pockets.
 
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