Asbestos Disclosure in the United States
In the United States, disclosures in real estate refer to the seller's legal obligation to reveal known flaws in the house or property they are selling. Mechanical and structural flaws, pests, and toxic substances such as asbestos are examples of such defects. Specifically, asbestos disclosure involves informing a property buyer or renter about the presence of asbestos within a structure and how it may affect their safety and the property's value. While there are no asbestos disclosure provisions explicitly outlined in federal mesothelioma and asbestos laws, most U.S. states statutes demand asbestos disclosure within their judicial district.
Because of its fiber strength and heat resistance, asbestos was often used as a construction material in most houses built before 1981 and in some structures constructed after that. However, it has been proven that asbestos on a property can pose serious, even deadly, health and safety risks to residents. As a result, some organizations, including the Environmental Protection Agency (EPA), the Occupational Safety & Health Administration, and the European Union, established statutes to protect people from asbestos in the U.S. and internationally. Along with other organizations, these agencies develop asbestos regulations to promote a global asbestos ban and protect the public against asbestos exposure.
Asbestos disclosure is a means employed to protect the public from asbestos exposure. It involves disclosing or divulging the presence of asbestos materials in a property and its condition. The EPA has determined that the mere presence of asbestos materials does not pose a health risk to occupants and that such materials are safe as long as they are not dislodged or disturbed in a way that causes asbestos fibers to be released. For example, processes that produce dust (such as sanding and scraping) can cause asbestos particles to become airborne. The EPA does not require the removal of complete asbestos-containing objects. Instead, the law merely requires that people take reasonable precautions to limit the potential of injury or interruption to those objects. Asbestos disclosure is one example of such reasonable precaution.
Overall, while selling a home in the United States, a seller must disclose any issues that may affect the property's value or appeal. It is unlawful to intentionally and fraudulently conceal serious physical defects in a property. Consequently, most states' laws require sellers to take a proactive role in disclosing issues to purchasers, including giving written disclosures about the property's condition.
Asbestos Disclosure Laws
While no federal laws explicitly provide for asbestos disclosure, most U.S. states require property sellers to disclose asbestos to prospective buyers. Sellers are typically required to fully disclose all relevant information that may affect a buyer's choice to acquire the property. Sellers must provide information about hazards, defects, and other various factors. The federal government and individual states set requirements for real estate disclosure, including lead paint, wetlands, floodplain, and even asbestos disclosure.
Many U.S. states have more specific laws than others. While some jurisdictions demand outright asbestos disclosure, some only require disclosure of unsafe or toxic substances, which could include asbestos. For instance, according to the Illinois' Residential Real Property Disclosure Act, a property seller in Illinois must complete a disclosure document indicating if they are aware of toxic concentrations and conditions relating to asbestos on the premises. If the seller fails to disclose, the buyer has the right to terminate the contract, and the seller is then liable to the buyer for any damages incurred.
Also, according to Wisconsin law, a seller must report the presence of asbestos or asbestos-containing items on the property. Wisconsin statutes do not require asbestos to be dangerous to be disclosed; it simply has to exist within the property. Wisconsin law, like Illinois law, also permits the buyer to cancel the contract if they discover a misrepresentation during disclosure.
Do You Have to Disclose Asbestos When Selling a House?
Though federal law does not require a property seller to disclose that their home contains asbestos to a prospective buyer, specific state and local regulations may demand such disclosure.
Does Asbestos Affect a Property's Value?
The presence of asbestos in a structure influences its value. Because the buyer determines demand, if a buyer is uncomfortable with the presence of asbestos in a home, the property's perceived value may fall considerably. Several factors, including the amount of asbestos present, where it is located, and its condition, will determine how much the presence of asbestos will impact the property's value.
Although asbestos has the potential to be dangerous, the presence of asbestos in a home does not mean that it is airborne and lethal. If the asbestos-containing material is fractured and the fibers are released into the air, there is a risk of asbestos fiber exposure. If these asbestos particles are inhaled, they become trapped in the body's internal organs and could cause cancer. This might eventually lead to the property's owners being held accountable for damages. As a result of these effects, the presence of asbestos in a property might reduce its value.
Suppose the seller is aware that asbestos is present in the building or dwelling. In that case, they may either have it removed or report the presence of the potentially hazardous materials to possible buyers. Overall, disclosing the presence of asbestos can reduce the home's value, drive off potential buyers, or allow them to negotiate a reduced purchase price with the seller.
How to Disclose Asbestos on a Property
Most jurisdictions in the United States require sellers to give written real estate disclosures, typically on specific forms that both the buyer and seller must sign and date before the real estate transaction may be deemed complete.
As with standard real estate disclosures, asbestos disclosures are usually provided in a written document that highlights all relevant information that the seller is aware of at the time of sale. They are used to notify prospective buyers if a home contains asbestos and in what condition it is. Such documents are called asbestos disclosure forms. The paperwork should be provided as soon as possible before the conclusion of a real estate transaction. Doing otherwise, especially to make a fraudulent sale, violates the law.
Asbestos Disclosure Form
The asbestos disclosure form is a type of property disclosure paperwork. It is a legal document that provides information on the condition of a property and warns a property buyer that the building may contain asbestos. Its purpose is to let the seller fully disclose the property's condition, allowing purchasers to decide about acquiring the property and at what price. Although some states have specially designed forms for this purpose, the general requirement is that asbestos disclosure is presented in a written format. They are deemed legally binding, and they require signatures from the seller and the buyer to demonstrate agreement.
Additionally, asbestos disclosure paperwork may include instructions or recommendations for the buyer to avoid disturbing undamaged asbestos within the property. For example, an asbestos disclosure document may indicate what precautions a buyer must take in the event of a water leak or other faults that may result in asbestos exposure.
It is critical to remember that providing inaccurate information on an asbestos disclosure form is illegal because concealed hazards might cause catastrophic damage to an unsuspecting buyer. A seller who provides false information risks being significantly fined, prosecuted in court, or both.
Can You Sue for not Disclosing Asbestos on a Property?
Yes, an entity can sue a seller for failing to disclose the existence of asbestos on a property. They can do so by initiating a non-disclosure lawsuit. It may be deemed "fraud by concealment or misrepresentation" in some cases. Non-disclosure lawsuits often arise when a state requires asbestos disclosure on a property, and the seller is aware of (but fails to reveal) the existence of the toxic substance within the property.
Buyers of real estate who believe they have been deceived by an unethical seller who failed to disclose the presence of asbestos on a property might file such cases. If the buyer suffered any injuries due to asbestos exposure, they might launch a premises liability asbestos case against the property owner who permitted such exposure. In this case, the buyer is entitled to compensation for damages suffered from asbestos fiber inhalation, such as lung and other health problems.
The federal government imposes no obligations on home sellers regarding asbestos disclosure. However, while some jurisdictions specifically demand asbestos disclosure, others require disclosure of anything that may significantly influence the value of the residence, which could include asbestos. If the seller chooses not to disclose the existence of asbestos even though the resident state-mandated such notification, a non-disclosure or asbestos liability action may be filed.
How to Sue a Seller for not Disclosing Asbestos on a Property
By bringing an asbestos lawsuit, a buyer can sue a seller for failing to disclose the existence of asbestos on the property before the sale. The following must be demonstrated in order to have a legitimate claim:
- The seller had a duty of care to the buyer to reveal asbestos on the property.
- The seller violated that duty of care by concealing or suppressing vital information about the presence of asbestos on the property.
- The plaintiff (the buyer) was unaware of the fact and would not have taken the course of action they did if they were aware of the concealed or suppressed truth.
- The plaintiff sustained an injury or incurred losses because the seller willfully concealed the information. Damages, in this case, may include property depreciation, health issues, and costly asbestos removal or abatement charges.
Suppose a resident suffers from an illness caused by asbestos exposure and believes that the presence of asbestos in their home had a role in their illness. In that case, the afflicted party must establish that the asbestos in their home was the source of their sickness. They can prove this by ruling out any other plausible causes of the illness or other sources of asbestos exposure. This is important because, even if the plaintiff has asbestos in their home, if it is in good condition and has not been disturbed, proving that the asbestos within the property was a contributing factor to their illness might be more challenging. In such cases, it is conceivable that the asbestos came from somewhere else, in which case the previous owner is not liable.
Finally, the affected party must calculate the magnitude of their damages. Recoverable damages include:
- Current and future medical expenses
- Wages or salaries forfeited during time away from work due to sickness
- Reduced earning capacity
- Pain and suffering
- Asbestos abatement costs
- Compensation for the loss in value of their home due to asbestos, etc.