No Or Unknown HazMat? Is That The Prevailing Question?

Concise as I could be after searching/reading website. Please respond.

We contracted to buy 16 yr. old town house (before going to market) in Howard Co, MD. the same day seen without a buying agent on the saturaday before Memorial Day. Disclosure has hazardous materials checked as "no", instead of "unknown" where provided. Didn't do inspections because of disclosure and our financing bank would do if appraiser deemed necessary. Selling agent did not return bankers calls the first week. Before 10 day contingency deadline, selling agent called and suggested/insisted we can do inspections late. Inspections were done. Selling agent stated unsatisfactory mechanical/operational would be fixed even though inspected late. Then radon test results were received; comparalatively would of been 1+ day(s) late if started the day after Memorial Day. We researched radon facts while seller indicated she wouldn't correct and selling agent stated contrary to EPA handbook and badgered (via phone) co-buyer at co-buyer's workplace (trying to get us to agree). We wrote and declared contract to be void because house was misrepresented in disclosurer and health risks associated with radon. Seller is now threatening to sue for $6000+ if we don't release $2000 deposit.

1. How good of a case (in percentage) do we have if any to get back our $2000 good faith deposit, and can we sue for attorney fees.

2. Is claiming ignorance by seller and/or agent in disclosure in this jurisdication/situation allowed and if not does that pretty much determine the case in our favor.

3. Was the selling agent unknowingly/knowingly acting as a dual agent in regards to the disclosurer and if so was he violating his duty to me as a buyer by not knowing of the misrepresentation in the disclosurer.

Thanks so much in advance and/or for the information found on this great

[HomeGuru]

You have furnished a bunch of non pertinent information and left out the most important fact.
What was the radon reading and was it higher than EPA allowable?

The average reading over a 70hr. period after a 12hr. equalization period was 5.3pCi/L and the peak was 8.6pCi/L. Across the board it failed EPA's below 4pCi/L recommendation 96% of the time.

[HomeGuru]

Originally posted by silentsent
Concise as I could be after searching/reading website. Please respond.

We contracted to buy 16 yr. old town house (before going to market) in Howard Co, MD. the same day seen without a buying agent on the saturaday before Memorial Day. Disclosure has hazardous materials checked as "no", instead of "unknown" where provided. Didn't do inspections because of disclosure and our financing bank would do if appraiser deemed necessary. Selling agent did not return bankers calls the first week. Before 10 day contingency deadline, selling agent called and suggested/insisted we can do inspections late. Inspections were done. Selling agent stated unsatisfactory mechanical/operational would be fixed even though inspected late. Then radon test results were received; comparalatively would of been 1+ day(s) late if started the day after Memorial Day. We researched radon facts while seller indicated she wouldn't correct and selling agent stated contrary to EPA handbook and badgered (via phone) co-buyer at co-buyer's workplace (trying to get us to agree). We wrote and declared contract to be void because house was misrepresented in disclosurer and health risks associated with radon. Seller is now threatening to sue for $6000+ if we don't release $2000 deposit.

1. How good of a case (in percentage) do we have if any to get back our $2000 good faith deposit, and can we sue for attorney fees.
**My response: 99.9%. Why would you sue for attorney fees?
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2. Is claiming ignorance by seller and/or agent in disclosure in this jurisdication/situation allowed and if not does that pretty much determine the case in our favor.
**My response: No. it is not allowed as a defense in similar cases.
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3. Was the selling agent unknowingly/knowingly acting as a dual agent in regards to the disclosurer and if so was he violating his duty to me as a buyer by not knowing of the misrepresentation in the disclosurer.
Thanks so much in advance and/or for the information found on this great

My response: Not exactly but the agent for the Seller does owe a standard of care and duty to the Buyers.

As a side note, Buyers should always get a home inspection no matter what. Never depend on the real estate appraiser or Seller disclosure to substitute for a home inspection.

Thanks for the info, I gather it's not worth the risk, especially since I was told in consult that MD doesn't treat disclosurer the same way as VA. It's sad that we may have to lose the deposit because we were not considering the probablity of radon in this area or any area (thougt it was a freak occurance) and had to make a gut decision based on a revelation (while researching radon) of our first hand knowledge of a foundation restoration company's owner's and one of his worker's health conditions. The owner had lung surgery a few years back and speaks and breaths with a rasp, and his long time worker couldn't keep pace with the other worker before coughing up blood and taking days off work, this occurred a few weeks after a radon mitigation job. In those regards, I guess we should be thankful the agent suggested/insisted we do the inspections late; otherwise today I'd be living in the basement with elevated levels of radon unknowingly.

Also I can't stop thinking how we got rushed into signing this contract the same day that we checked out the house. We thought it was a good oppurtunity/investment in a fast-seller's/hi-tech market. We also thought that we were doing the seller a favor by buying it before she was going to put it on the market ASAP and have to pay more to her agent so she can sign contract to buy another property. It also bothers me that the radon mitigation contractors we contacted would only guarantee to drop the level below 4pCi/L (one stated below 2pCi/L) from the average tested of 5.3pCi/L. Thinking/considering worst case scenrio (by trade) every step and option; I thougt we could shell out almost $1000 and rush to get the radon corrected and tested before deciding to settle or not. On the other hand, we could go thru with buying the house and
1)worst case would be, the corrective measure doesn't drop the level below the guarntee and we'd have to fight in court, not being certain of the outcome. Or;
2)the average level is corrected just below either guartee for a unknown duration in which case I'd be telling myself "it's worst than when I used to smoke half a pack a day, why did I even quit". Or;
3)best case would be, the level is 0.6pCi/L (Is it higher in Howard Co?) equal to the normal outside air and we'd be waiting for the ventilation fan to stop and try to get it fixed ASAP every 5+ years.

I wondor what the seller's position would of been if we had started the inspections imediately and still were at least one day late with the radon results (considering the same duration it took once we actually started plus the Sunday and Holiday following ratifacation).
Sorry I rambled on and explained the catch 22 we got ourselfs into, but hofefully someone that reads this wouldn't make a similar mistake.

I'm sorry I only read the last answer of your reply and was not expecting complete response thinking you would of done prior to asking for radon results, please forgive/ignore my previous reply unless the supposely less importance MD puts on their disclosure than VA could sway the case in their favor. P.S. I guess I go ahead and shell out another $350 on top the inspection fees for the two hours necessary for an attorney to review and write up a response to their threat and hopefully put these all behind us.

Sincere thanks.

[HomeGuru]

Good luck.

I called my county lawyer advice & referral service and decided to pay $34.95 to talk with a general practice attorney. He suggested that we file in small claims to get our $2000 deposit check back which we've requested three weeks ago via certified mail. But, I forgot to ask for a referral for lawyer that specializes in real estate seller's disclosure. I'm being told by many real estate lawyers that disclosure in MD is only concerned with what the seller knew not what the seller should of known (how can that be changed in one's state). I'm planning to file in the county that I reside in, first thing monday.

I wondering if that's the right thing to do and if it should be filed in the county where the house was for sale instead. It seems the most logical option for us, since legal fees certainly would start taking big chunks of the $2000 we're suppose to be saving, which I would't mind if I can be fairly certain that I wouldn't lose the $2000 deposit and/or be liable for damages. If the house sells for more than what we contracted, does that mean we're not liable for damages including the seller's unplanned mortgage payment and such.

Keeping this thread posted and any response would be greatly appreciated.

[HomeGuru]

Read this:
[url]http://www.buildingteam.com/news/news.asp?lxu=20123/7388568/2[/url]

[Edited by HomeGuru on 07-25-2001 at 11:22 AM]