Expert: Karyn Foley - 4/2/2010

Question
QUESTION: I closed on a home a month ago.  I knew and was advised by the inspector that there was asbestos insulation on the heating pipes. I was planning to redo that part of the house and bought into the sale anyway.

when the contractor came over we found out that the whole basement is covered in asbestos tiles semi bonded with asbestos adhesive.  They are braking up and loose in many places.  This was not disclosed and is much more expensive to remove especially now that I am moved in.

I really don't like to go after the "estate" that sold us the house but thing I should.

How should I handle this.

ANSWER: Dear Scott:  I do not have a copy of your contract so I am going to have to do this one by ear.  If the asbestos insulation on the heating pipes was in the basement, then the disclosure was made to you.  At that time, alerted to the situation, you were able to then get an estimate - perhaps from an expert in the field - as to the possible cost of removal.  The home inspector does not do removal and thus would not have the information as to cost.  But, if the asbestos was not in the basement, then perhaps you have justification to go after the inspector who overlooked it.  Some inspectors carry errors and omission insurance. When an item is "red flagged" on a property, the buyer should use good common sense and find out more about the problem.  If you had an agent represent you, the agent might have made that suggestion. The first thing you should do is to contact the representative of the seller, or the company/attorney of the selling principal and see if you can work out a compromise. If you think you are still going to go after the selling principal legally, you have two choices.  One is to consult an attorney and get advice and proper legal direction.  The other is to go to small claims court yourself with all the documents you have and an outline as to why you think you should prevail.  Keep in mind that small claims court has a monetary amount at which you can collect no higher.  Check this out through your local court system, or go online for that information.  Good luck and let me know what happens.  Karyn Foley

---------- FOLLOW-UP ----------

QUESTION: Thanks,

Just for clarification, the asbestos on the pipes was noted in the inspection and I accepted that.   The asbestos in the floor tile and glue was not noted.

I do want avoid court.  I will start with contacting the estate representative.

How much detail should I provide, do I make my full case up front or just request a settlement amount. Do we write up an agreement so our settlement is supported? I am not afraid to settle up short if I make another mistake I just want to move forward.  The house is contaminated and I bought it, I don't care.  I do want to take action and remove the source and don't think I should have to take the full burden.  The previous owner lived there for 40 years and should have addressed the problem.

Answer
Dear Scott:
 With reference to the asbestos in the floor tile, the seller is obligated to disclose those items about which he has knowledge.  If he did not put in the floor tile nor ever jackhammer them up, he would not have known about the asbestos.  Also, the inspector does not jackhammer tiles either, so how would the inspector know about it?  If there was something that should have alerted the seller or the inspector, what would that have been and would it have been reasonable enough to put the onus on either the seller or inspector?
 Making your point up front is always a fair thing to do.  I cannot give you legal advice, because as real estate professionals we "cannot practice law without a license".  
 Even if the seller lived there for forth years, why should he have known?  Even if he had the tile installed, forty years ago asbestos was probably what was used as a customary installation and an installer would not necessarily have informed the owner as to the composite of any glues, paints, et cetera.  The laws have changed considerably over the past forty years, as have products and knowledge about them.
 Why are you pulling up floor tile? If you had plans to update the home and were going to change the tile, you would be eliminating the problem.  Or - are you changing tile because you think the asbestos glue is a problem?  You should consult an asbestos specialist, because in some cases asbestos is not a problem if it is not "loose" or impacted.  See if there is a problem before you worry yourself into creating one.
 If you are fortunate enough to get any money from the seller, it is always a good idea to get the agreement in writing.  The estate people, especially, will probably be smart enough to have you sign off on anything else you may find, too.  
 The age of the home itself and original products should have told you to investigate further if you were concerned.
Karyn Foley