Written Disclosures Trump Oral Statements Every Time

Question: After buying my home, my contractor discovered that the house once had a fire. When I called this to the attention of my agent, he said that old fire damage had been fully disclosed to me before I closed escrow. None of the paperwork mentions anything about a fire, but the agent, the seller and the home inspector all insist that I was informed verbally of this condition. Because of this deadlock, we are now involved in a lawsuit. What good are written disclosures if they can be overruled by these kinds of false claims?

Answer: Written disclosure is the centerpiece of every residential real estate transaction. No fact is more indelibly etched into the minds and hearts of home inspectors and Realtors.

Oral disclosure is vapor on a windy day. Written disclosure, on the other hand, is the indisputable meat and potatoes of purchase information. If verbal claims were given precedence over written ones, disputes and suits would become the aftermath of far more home sales than is presently the case.

For the home inspector, the written 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 claim to have said.

When a home inspector discovers evidence of a past fire, disclosure to the buyer is imperative, even if there is no serious damage to the structure. If the damage is superficial, the report should make a statement such as, “Evidence of past fire noted in the attic. No significant damage observed. Consult local fire department for a copy of the fire report.”

But to say nothing in the report, while mentioning the condition only by way of oral conversation, would constitute negligent performance on the part of the inspector.

Likewise, within the real estate profession, disclosure is important in every transaction. No aspect of the real estate business has been so thoroughly driven into the minds of Realtors during the last 10 to 15 years. As part of every sale, an agent conducts what is known as a “due diligence” inspection and submits a written form, disclosing all conditions that were observed or otherwise discovered. And again, these disclosures are not to be merely oral ones.

In your case, with all three parties having failed to provide written disclosure of a significant condition, alleged oral disclosures would certainly appear suspect.

More on the Hazards of Whirlpool Tubs

Q: We have a whirlpool tub in our master bathroom and took great interest in your recent column regarding bacterial health hazards in whirlpool bathtubs. We also remember hearing about another related hazard, one that involved an accidental drowning. Do you know anything about this?

A: The incident you recall took place in Southern California a few years ago. A young woman was rinsing her hair in a whirlpool tub while the pump was operating. The circulating system drew her hair into one of the water intake openings, where it became entangled, preventing her from surfacing.

Since that tragic accident, HydraBaths Corp., a whirlpool manufacturer in Santa Ana, has implemented a recall of some of its suction covers. The covers in question are notable in that the openings are wider than one-eighth of an inch, allowing easy entanglement of hair. If your whirlpool tub is a HydraBaths product, or if the openings in your suction covers seem large enough to raise concern, I recommend that you contact the manufacturer or the U.S. Consumer Products Safety Commission in Washington, D.C., (800) 638-2772 or https://www.cpsc.gov.

Regardless of the type of system you own or the size of the intake openings, it is advised that you not submerge your head while the circulating pump is in operation.

Ground Fault Problems Are Worth Researching

Q: The buyer of our home (which is less than 5 years old) hired a home inspector, who reported that we had no ground fault protection at the garage outlets. When we called our electrician, he said the garage outlets were wired according to code, and he mailed us a letter certifying this fact in writing. It wasn’t easy, but we finally got the buyer to accept this assurance and closed escrow. What I’d like to know is: How can sellers protect themselves from mistakes by home inspectors?

A: You say the home inspector reported a faulty electrical condition and the problem was resolved by written assurances from an electrician? What I’m not hearing is that the electrician came to your home and tested the garage outlets to ensure that they are truly equipped with ground fault protection.

In this situation, electrical safety compliance has been called into question. Rather than rushing to judgment, it makes sense to physically evaluate the outlets. It is possible that one of the ground fault devices installed at the time of construction has become defective.

Here’s a simple test anyone can perform. Each of the ground fault outlets in your home is equipped with a built-in test button. When the test button is pressed, the power to the circuit is interrupted. I recommend that you push each of these test buttons, thereby disconnecting all protected outlets. Once this is done, plug an appliance (a lamp, a radio or other small appliance) into each of the garage outlets. If the outlets still have power, then they lack ground fault protection and the electrician has some work to do.

I further recommend that the home inspector be given the opportunity to defend the findings in his report. After all, the issue being disputed is not academic, it’s a matter of personal safety.

Safety Standards for Laundry Chutes

Q: An inspection report on my home rated the laundry chute as unsafe for small children. When I checked with the local building department, they said the chute construction violates no particular safety codes.

The people who are buying my house are not reassured by this and insist that the opening to the chute be upgraded for child safety. Are you aware of any safety standards that apply to laundry chutes?

A: The only code requirements that address the construction of laundry chutes pertain exclusively to fire safety. These codes specify the types of materials to be used for controlling the spread of fire from one portion of a building to another. This, however, is the beginning and end of safety considerations relating to laundry chute construction.

In reviewing these codes, I find no prescriptions for preventing child access to laundry chute openings.

Laundry chutes have become a popular amenity in the design of many two-story homes, and the majority of these are built in ways that enable easy access by curious and adventurous children. In the absence of a legal requirement, homeowners should exercise caution to ensure adequate child safety at chute openings. With large floor-level openings, one can easily imagine a child falling to the lower floor of a building or simply becoming stuck in the chute. Even lacking specific code requirements, childproof openings on chutes are strongly recommended.

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If you have questions or comments, contact Barry Stone through his Web site at https://www.housedetective.com.