Disclosure question

[hham]

My mother sold her house in California last September and the contract stated "as is". We disclosed that there was mold accummulating on the walls in the front bedrooms and that the windows sweated. I washed the walls down with bleach whenever the mold appeared, but did not state this. It's now December and I was contacted by our realtor that the buyers are concerned because the mold has spread from the bedrooms to almost every wall in the house. When I lived there the mold was confined to the front bedrooms only. The buyers are both attorneys and are demanding we make the necessary repairs or buy the house back at fair market value. They say that we did not disclose the severity of the problem. We do not know what the cause is at this time nor what the cost will be. They also have a 3 week old baby and the pediatrician informed them to move out until the repairs are done. My initial plan was to make the necessray repairs, but is there any recourse when a home is bought "as is". I did indicate the mold problem and the window sweat, but I never let the mold get out of hand when I lived there. They sent me pictures and a video tape and the condition seems to have gotten worse since I last lived there. This condition occurs only in the winter months and the home is 50 years old. The buyers had a window company come out and say it was faulty installation of the windows we had installed back in 1985 and that was the cause of the problem, but a contractor says there may be a hot water leak under the house and it's not the windows. Can you help?

 

[HomeGuru]

You/your Mom have a very serious problem and you need to hire an attorney right away. Your Realtor should have told you that selling the property as-is does not fully protect you from non-disclosure of material facts that was known or should have been known. Toxic mold is a real problem. You are not only exposed as Sellers on a real esate disclosure case but also a potential personal injury lawsuit.

If the problem is at the windows and only occurs or gets worse during winter months, I would rule out a hot water leak under the house.

 

[hham]

We plan on hiring an attorney to get some clarity. By no means are we trying to be uncooperative in this matter, but I'm just wondering how I can disclose what I don't know. I stated mold accummulated in the front rooms, which is where it was confined when I lived there. It has spread and become serious now and is on other walls in the house. There was no way for me/us to predict the mold would spread to other parts of the house. Thanks for the info.

 

[HomeGuru]

We plan on hiring an attorney to get some clarity. By no means are we trying to be uncooperative in this matter, but I'm just wondering how I can disclose what I don't know. I stated mold accummulated in the front rooms, which is where it was confined when I lived there. It has spread and become serious now and is on other walls in the house. There was no way for me/us to predict the mold would spread to other parts of the house. Thanks for the info.

Homeguru response:

You are absolutely correct in that you can not disclose what you don't know.
But in this instance you cleaned the walls with bleach and did not disclose that material fact. The Buyer is entitled to full and complete disclosure and expects same. In this situation, the Seller had a duty to disclose all information concerning the mold that the Seller is aware of. This information would consist of locations of the mold, description and quantity ie. 2nd bedroom under the southwest windows, black in color and approximately 2 feet by 3 feet in size. Number of times the mold appeared, when (seasons) and what was done to rectify the problem and how many times. For instance you should have stated the above information. Then the Buyers could have decided if they wanted to pursue further investigation.
Furthermore, your disclosure should have included the above information AND a disclaimer such as "Seller did not and will not hire an expert to determine the cause of the mold, the type of mold and whether the mold is toxic. Seller advises the BUYER to hire inspectors, contractors, architects/engineers and/or environmental consultants of the Buyer's own selection to investigate these matters further. All costs will be borne by the Buyer..........

Have your attorney review your contract as there should already be a disclosure form with respect to mold. The California Board of Realtors already has an approved clause in the contract.