Between a -- moldy -- rock and a hardplace

[edame]

What is the name of your state? CALIFORNIA

This is a multi faceted issue:

I recently contracted to purchase a home for which the broker was representing both the me and the Seller (I knew the broker from other transactions; he knew that I was looking for home. He was about to list the home for the Seller, but called me to see if I wanted a first look before it went on the MLS).

The disclosures did not include any mention of mold although the home had a history of water intrusion. I hired a home inspector who, upon his inspection of the home, found significant black mold very visible from which an odour emanated. He suggested that I retain the services of an environmental testing company to test for teh severity of the mold. He reffered me to such a company.. The Seller and I agreed that I would pay for the initial testing -- I did ($1400) -- and he would b responsible for the costs of fixing whatever was discovered as a result of the testing.

The testing revealed that in several locations -- all where there was water intrusion -- there was the existence of mold. More specifically and importantly, the tests also revealed the presence of Stachybotrys which is highly toxic strain of mold, basically a poisonous mytotoxin. The Seller agreed to pay for the subsequent costs in connection with the mold removal including, but not limited to, hiring a remediation (specialists in mold removal) contractor to remove the mold as well the cost of replacing those areas from where the mold was removed. The Seller is a General Contractor, so the cost to him of drywall and paint would be marginal, at best. All of the aforementioned work was set to begin yesterday, the first day that the home was vacant after the Seller's move.

Before the first testing even began the broker told me that memorializing the agreement to fix the mold and extending the contingency period in connection thereto would not be necessary. he claimed to have had a longstanding relationship with the -- "stand-up guy"-- Seller, evidently he had represented him on 10 previous sales. I took the Broker at his word. Although I did not have a formal contract attesting the verbal agreement, I did have an email from the broker confirming the Seller's consent to pay for and fix all the water intrusion and mold related issues by using the services of a professional

Last Thursday, four days prior to the remediation work commencing and five days prior to my closing on the property I received a lengthy email from the broker wherein he stated that the Seller would not pay for any of the previously approved work. I was, neddless to say, shocked. I responded, indicating that this tack was unacceptable and a breach of contract. I demanded that the work be done or that i would be forced to file suit and file a lis pendens on the property. The following day I received a terse email with an attachment of a Notice of Buyer to Perform agreement. This document gave me 48 hours -- until yesterday @ 5:00 PM -- to respond -- sign off on all contingencies -- or the Seller would place the property back on the market. I am convinced that the Seller believed that he sold the home at a below market price (remember I was the first and only one to see the property) and he was hoping that I would cave in and that he would get the home back to sell at a higher price

I signed the Notice to Perform, agreeing to sign off on all the contingencies, primarily because I was facing a child custody hearing (I just got divorced) at which, if I was unable to confim that I had purchased a new home -- the ex got the old one -- the judge probably would have ordered a reduction in my custodial time. The rental property in which I was residing was simply too small to house my twins, one of whom is autistic.

In view of the foregoing my issues are several fold:

1. I believe the Seller knew about the mold and failed to disclose it. I am convinced of this because I had two independant inspectors indicate the mold was very visible in at least one area that was very conspicuous. Moreover, the Seller -- a General contractor -- was aware of the water intrusion issues and the fact that he had never taken measures to fix the problem, a harbinger of mold.

2. The Seller agreed until 5 days before the closing to pay for all the costs in connection with curing the mold problem. This was conveyed in a myriad conversations between the broker and me as well as the Seller. I have at least one email from the Broker wherein he confirms the Seller's agreement to take care of the problem.

3. Despite my requests the broker, acting as an agent for both sides, failed to memorialize any of what was agreed to in writing.

Please advise on the best plan -- if there is one -- of attack for the preceding nightmare.

Also, please advise me of the admissability in a civil matter in California of a taped conversation -- between the Broker and me -- occurring in person, NOT telephonically. The broker left me a conciliatory and apologetic voice mail this morning requesting a meeting with me so that he could explain what happened. This would seem to be a great opportunity to surreptitiously tape record the conversation to obatin his admission of wrongdoing.

For the record, I did not agree to the binding arbitration clause in the purchase docs.

Thanks, in advance, for your help.


lis pendens

[HomeGuru]

Originally Posted by edame

What is the name of your state? CALIFORNIA

This is a multi faceted issue:

I recently contracted to purchase a home for which the broker was representing both the me and the Seller (I knew the broker from other transactions; he knew that I was looking for home. He was about to list the home for the Seller, but called me to see if I wanted a first look before it went on the MLS).

**A: did you sign a dual agency disclosure?
**********
The disclosures did not include any mention of mold although the home had a history of water intrusion. I hired a home inspector who, upon his inspection of the home, found significant black mold very visible from which an odour emanated. He suggested that I retain the services of an environmental testing company to test for teh severity of the mold. He reffered me to such a company.. The Seller and I agreed that I would pay for the initial testing -- I did ($1400) -- and he would b responsible for the costs of fixing whatever was discovered as a result of the testing.

The testing revealed that in several locations -- all where there was water intrusion -- there was the existence of mold. More specifically and importantly, the tests also revealed the presence of Stachybotrys which is highly toxic strain of mold, basically a poisonous mytotoxin. The Seller agreed to pay for the subsequent costs in connection with the mold removal including, but not limited to, hiring a remediation (specialists in mold removal) contractor to remove the mold as well the cost of replacing those areas from where the mold was removed. The Seller is a General Contractor, so the cost to him of drywall and paint would be marginal, at best. All of the aforementioned work was set to begin yesterday, the first day that the home was vacant after the Seller's move.

Before the first testing even began the broker told me that memorializing the agreement to fix the mold and extending the contingency period in connection thereto would not be necessary.

**A: and do you have this in writing from this idiot Realtor?
***********
he claimed to have had a longstanding relationship with the -- "stand-up guy"-- Seller, evidently he had represented him on 10 previous sales. I took the Broker at his word.

**A: wrong move as you well know.
*********
Although I did not have a formal contract attesting the verbal agreement, I did have an email from the broker confirming the Seller's consent to pay for and fix all the water intrusion and mold related issues by using the services of a professional

**A: Ok, that's better than nothing.
********

Last Thursday, four days prior to the remediation work commencing and five days prior to my closing on the property I received a lengthy email from the broker wherein he stated that the Seller would not pay for any of the previously approved work. I was, neddless to say, shocked. I responded, indicating that this tack was unacceptable and a breach of contract. I demanded that the work be done or that i would be forced to file suit and file a lis pendens on the property. The following day I received a terse email with an attachment of a Notice of Buyer to Perform agreement. This document gave me 48 hours -- until yesterday @ 5:00 PM -- to respond -- sign off on all contingencies -- or the Seller would place the property back on the market. I am convinced that the Seller believed that he sold the home at a below market price (remember I was the first and only one to see the property) and he was hoping that I would cave in and that he would get the home back to sell at a higher price

I signed the Notice to Perform, agreeing to sign off on all the contingencies, primarily because I was facing a child custody hearing (I just got divorced) at which, if I was unable to confim that I had purchased a new home -- the ex got the old one -- the judge probably would have ordered a reduction in my custodial time. The rental property in which I was residing was simply too small to house my twins, one of whom is autistic.

In view of the foregoing my issues are several fold:

1. I believe the Seller knew about the mold and failed to disclose it. I am convinced of this because I had two independant inspectors indicate the mold was very visible in at least one area that was very conspicuous. Moreover, the Seller -- a General contractor -- was aware of the water intrusion issues and the fact that he had never taken measures to fix the problem, a harbinger of mold.

2. The Seller agreed until 5 days before the closing to pay for all the costs in connection with curing the mold problem. This was conveyed in a myriad conversations between the broker and me as well as the Seller. I have at least one email from the Broker wherein he confirms the Seller's agreement to take care of the problem.

3. Despite my requests the broker, acting as an agent for both sides, failed to memorialize any of what was agreed to in writing.

Please advise on the best plan -- if there is one -- of attack for the preceding nightmare.

**A: there is a problem because you signed the latest papers. Hire an attorney.
**********
Also, please advise me of the admissability in a civil matter in California of a taped conversation -- between the Broker and me -- occurring in person, NOT telephonically. The broker left me a conciliatory and apologetic voice mail this morning requesting a meeting with me so that he could explain what happened. This would seem to be a great opportunity to surreptitiously tape record the conversation to obatin his admission of wrongdoing.

**A: it depends upon the judge.
*******
For the record, I did not agree to the binding arbitration clause in the purchase docs.

Thanks, in advance, for your help.


lis pendens

**A: right**************....