9.1 Agents Visual Inspection and Material Facts #
Company policy is for Associates to educate themselves and learn about all of the material facts and potential environmental hazards that could possibly affect a client or transaction and conduct a thorough Agent Visual Inspection and disclose the finding(s) to all parties involved.
The role of the real estate agent has changed. In the past it was truly a “buyers beware” marketplace. If a buyer had environmental concerns, the real estate industry did not address them. If the buyer wanted to inspect the property, the buyer was responsible if they failed to discover a material defect. The old “buyer beware” doctrine shielded sellers and licensees from liability for any defective property condition. Today, agents are responsible to visually inspect the property and assist buyers and sellers in discovering and disclosing ALL material facts that the investigation reveals.
When an agent does not follow this policy, cases may be brought against the licensee under the theory of fraud or negligence.
Fraud: Lawsuits against sellers and real estate agents because of fraud are based either upon the premise that liability should result from an affirmative or intentional misrepresentation or from an omission or nondisclosure of a fact.
Therefore, any lawsuit based upon a fraud theory must contain all of the following elements:
- Nondisclosure, by a broker, of facts involving environmental hazards that materially affect the value or desirability of the property.
- The broker had knowledge of the facts involving environmental hazards and the facts were beyond the reach of the buyer.
- The broker’s intent was to induce action by the buyer.
- Inducement of the buyer to act by reason of the nondisclosure.
9.2 Negligence
#
To not conduct a reasonably competent and diligent visual inspection of the property being offered for sale would be negligence. A licensee can be held liable for not exercising ordinary care and skill in the conduct of their real estate practice.
Therefore, it is Company policy that every agent:
- Must NEVER intentionally misrepresent or omit (not disclose) any material fact.
- Must ALWAYS conduct a reasonably competent and diligent visual inspection of any property being offered for sale.
- Must be careful what they write on any visual inspection report with regards to what they see – DO NOT MAKE YOURSELF THE EXPERT, BUT ONLY WRITE THE FACTS.
State laws require that a consumer information booklet is delivered to each buyer, a seller or broker to provide information concerning environmental hazards. This pamphlet provides adequate information concerning the most common environmental hazards that may affect residential or commercial property.
However, these pamphlet disclosures do not add or take away from the duty of the licensee to conduct the required visual inspections and to disclose to the buyer the results of that inspection. This section is an attempt to limit the licensee’s obligation to a reasonably conducted visual inspection and subsequent disclosure. It is recommended that the environmental hazards pamphlet also be given to inform the buyer about common hazards. Presumably, once the licensee has taken these actions, the burden is on the buyer to act upon the information provided by the licensee.
9.3 Environmental Issues #
In recent years, many individuals nationwide have spent the majority of their 24-hour day indoors. The U.S. Environmental Protection Agency (EPA) ranked indoor air pollution fourth in cancer risk among the 13 top environmental problems analyzed. Radon ranked number one.
Environmental hazards common to residential properties include: asbestos, lead, radon, molds and fungi, volatile organic compounds (VOCs), potable water supply contaminants, drug houses/clandestine drug labs and underground storage tanks. Each of these is discussed below with the Company policies.
9.4 Asbestos #
The best approach is not to disturb asbestos containing material (per list below) unless it is necessary to do so. Removal of the material should be considered as the last alternative. Trained, insured, and certified asbestos abatement professional contractors should only perform asbestos removal.
The three main diseases associated with exposure to inhaled asbestos fibers are:
- Lung Cancer: Humans exposed to asbestos are calculated to be at five times greater risk of contracting lung cancer than the general population. If a person smokes, the risk increases by 50 times over that of the general population.
- Asbestosis: Asbestosis is the scarring of the lung tissue that leads to shortness of breath. In some cases, the tissue is so severely scarred that the person cannot get enough oxygen to walk and perform normal daily activities. This condition usually occurs in those who were exposed to prolonged high levels of asbestos.
- Mesothelioma: Mesothelioma is the cancer of the lining of the abdominal cavity or chest. Minimal amounts of exposure to asbestos can lead to this condition. Smoking can exacerbate this condition and increase the risk dramatically.
Any products or materials in the following list which are found in houses built prior to 1978 should be viewed as suspect:
- Appliances (used as insulation blankets in stoves and oven doors and walls and in cover gaskets.)
- Asbestos containing parts have been found in toasters, popcorn makers, broilers, slow cookers, dishwashers, refrigerators, ranges, ovens, clothes dryers, electric blankets and hair dryers.
- Ceiling material (textured acoustical “popcorn” ceilings and some ceiling tiles and lay-in panels).
- Acoustical and decorative plasters
- Textured paint coatings
- Wallboard patching, taping, and spackling compounds.
- Caulking/putties
- Vinyl floor tiles, vinyl sheet flooring, and under sheeting/tile mastics.
- Asphalt floor tile
- Flooring backing
- Construction mastic (used for carpet and ceiling tile, etc.)
- Furnace/HVAC systems (used as an insulator and as duct insulation and tape at duct connections.)
- Ductwork flexible fabric connections
- Pipes (used as insulator blankets on hot water and steam pipes).
- Roofing felt
- Roofing shingles
- Cement siding
- Insulation in houses built between 1930 and 1950
- Oil and coal furnaces and door gaskets
- Electrical wiring insulation (on very early electrical wires used in knob and tube applications)
- Cement sheets on walls and floors around wood burning stoves and fireplaces
- Cement pipe
Company Policy for Licensees regarding Asbestos:
The following policies should be followed by licensed Associates dealing in residential properties of one to four units with respect to the environmental hazard of asbestos:
All houses built prior to 1978 will probably contain a number of asbestos containing materials. The licensee should conduct a reasonable visual inspection of the property and identify any component that may be a potential source of asbestos. The licensee should, as a guide to identifying potential asbestos containing materials or components, refer to this list of products or house components listed in this section.
- The licensee should disclose to the buyer the results of the visual inspection and inform the buyer that tests may be performed to determine the actual presence or absence of asbestos in the suspect materials or house components.
- Deliver to the buyer the state Environmental Hazards pamphlet.
- Advise the home buyer to evaluate the amount of asbestos found, the physical condition of the asbestos containing materials, and the potential abatement costs. From the buyer’s standpoint, the mere presence of asbestos should not be the reason for not proceeding with the home purchase. Only when the total abatement program and the cost to abate are analyzed in terms of the overall transaction, should the decision to purchase or not to purchase be made. The licensee should not recommend to the buyer the actual course of actions that should be followed. However, the licensee may be able to help the buyer evaluate the asbestos issue by keeping in mind the following evaluation points:
- Asbestos containing materials found on the outside of the house (such as siding and roofing) do not present a real health hazard.
- Asbestos containing materials found in the inside of the house should be evaluated in terms of location, condition, quantity, and friability.
- If the material containing asbestos is in good condition, there should be little concern.
- If the material containing asbestos is in a deteriorated state and is obviously friable, then the cost to repair or remove the material should be considered.
- If there are plans to remodel the house, an evaluation of the potential materials containing asbestos should be conducted along with a consideration of removal or removal alternatives.
- Asbestos containing materials that become friable should be deemed a serious potential health hazard.
- The costs of asbestos removal or alternative abatement methods should be considered. If the costs are found too high, refusal to purchase may be the only solution for some home buyers. The home buyer might also consider asking the seller to reduce the price of the property to compensate for the costs of asbestos abatement.
- If removal of asbestos containing materials or disturbing of asbestos containing materials is to occur, the homeowner is advised to:
- Hire a licensed asbestos abatement contractor; or
- Follow the EPA and DEQ guidelines for handling asbestos containing materials and the disposal of the materials if an election is made to abate the problem without using licensed professionals. If this election is made, the homeowner (or buyer) should be reminded that any exposure to asbestos is considered a health risk. This risk then must be knowingly assumed.
9.5 Lead #
Lead is found in the dirt around houses, especially property near major roads due to lead particles from auto emissions drifting onto the property. The lead is then tracked into the house. Industrial and manufacturing facilities such as radiator repair shops, brass or bronze foundries, battery manufacturers, steel mills, and bridge construction areas are examples of environments with a high potential for lead exposure.
Lead-Based Paint Problems:
Lead has been used in paint for centuries. It increases durability and has a color depth quality. In the United States it is estimated that:
- Almost all houses built before 1940 have lead in the paint
- Seventy percent (70%) of houses built between 1940 and 1959 have lead in the paint
- Twenty percent (20%) of houses built between 1960 and 1978 have lead in the paint After 1978 the amount of lead in paint was limited to 600 parts per million and therefore is not deemed significant
Company Policy for Licensees regarding Lead:
In 1994, the United States Environmental Protection Agency (EPA) and the United States Department of Housing and Urban Development (HUD) drafted new federal regulations on the disclosure of lead-based paint hazards in residential properties to comply with the Residential Lead-based Paint Hazard Reduction Act of 1992. These new rules were implemented in 1996 in cooperation with the National Association of REALTORS®.
The 1996 rules provide that sellers or their real estate broker/agent must do all of the following:
- Provide to buyers and tenants a federally approved lead based paint hazard information pamphlet entitled “Protect Your Family from Lead in Your Home.”
- Disclose the presence of any lead-based paint or related hazard in any house built prior to 1978.
- Provide buyers and tenants copies of any available reports dealing with the presence of lead-based paint or lead-based hazards.
- Provide buyers (but not tenants) a 10 day or mutually agreeable period for a lead paint assessment or inspection before a purchaser becomes obligated under the contract to purchase. The buyer may waive this right to test for lead.
- The lead disclosure rules apply to both the purchase of residential property and to the renting of residential property built prior to 1978, with the following exceptions:
- Property sold at foreclosure.
- Rental property that is certified “lead-based paint free” by an inspector who is certified under a federal program or federally authorized state certification program.
- Property leased for 100 days or less with no lease renewal or extension.
- A renewal of existing leases, if disclosure was made at the time of the initial lease. However, disclosure must be made when renewing leases that were in effect on September 6, 1996.
- Units with no bedrooms or no separation between sleeping and living areas (e.g., studio apartments, dormitories, individual rental rooms in a residential dwelling).
- Housing for the elderly or disabled if children under the age of six are not expected to live there.
The signed documentation demonstrating that the purchaser or lessee received the required disclosure information must be retained by the seller, the landlord, or agent for a period of three years from the date of sale or lease. The burden of compliance with the lead disclosure law is on the seller and/or lessor. If a licensed real estate agent is involved in the transaction, it is the licensee’s responsibility to advise the seller/lessor of the lead disclosure obligation. This responsibility extends to all agents involved in the transaction, except for a buyer’s agent who is actually paid by the buyer. Records relating to the lead-based paint disclosure and executed disclosure documents must be kept for a minimum of three years for completed transactions.
Compliance with the Lead-Based Paint Disclosure Law is mandatory and civil penalties can range up to $10,000 for each violation. In addition, those who intentionally either ignore or violate the law can face up to one year imprisonment and up to a $10,000 fine, or both. The injured party (buyer or tenant) is also able to pursue relief under the federal statute for failure to disclose a hazardous condition, which by law is a material fact. The injured party may receive up to three times the damages sustained. The damages may include medical costs related to lead-based paint poisoning and costs associated with correcting the lead-based paint problem in the structure.
The buyer’s agent should deliver to the buyer the “Protect Your Family from Lead in Your Home ” pamphlet early on in the licensee/buyer relationship, and/or the local State pamphlet (varies per State) such as, “Environmental Hazards: A Guide for Homeowners, Buyers, Landlords and Tenants,” either or both of which fulfill federal requirements.
9.6 Radon
#
Radon is an odorless, colorless, tasteless gas that is naturally present in our atmosphere. This radioactive gas is a byproduct of disintegrating rock in the ground. As the rock splits and crumbles, it releases radon gas into the air. The half-life of radon is 3.8 days. The radon gas itself is not the health hazard. The hazard is a result of the radioactive gas charging the minute dust particles in the air with gamma radiation. These radioactive particles are then inhaled into the human lung. In the lungs, these particles may adhere to the lung tissue, emit energy that can kill or damage sensitive cells and damage DNA molecules. The damaged lung tissue then becomes a condition conducive to developing lung cancer. The actual potential for developing lung cancer is a function of how much radon a human is exposed to and for how long. If a person is a smoker and is exposed to elevated levels of radon, the risk of contracting lung cancer is even greater.
Any house can have a radon problem. New houses and older houses, well-sealed and drafty houses, and houses with or without basements may all be subject to elevated radon levels. The EPA estimates that nearly 1 out of 15 houses in the United States have elevated radon levels. These elevated radon levels have been found in all 50 states.
Company policy for Licensees regarding Radon
The following policies should be followed by real estate agents dealing in residential properties of one to- four units:
- All houses have the potential to have elevated levels of radon. The licensee should conduct a reasonable visual inspection of the property and identify any visible house radon mitigation devices or systems. The listing agent should also determine if the seller has any knowledge of prior radon test levels relating to the house. If no prior test had been conducted, it might be a good idea for the listing agent to encourage the seller to obtain one. A successful transaction may often involve timely and reliable testing in order for mitigating issues to be dealt with in a timely manner.
- The seller and licensee must disclose to the potential buyer any knowledge regarding radon levels in the structure and if testing has been performed in the past. If a prior test for radon has been conducted, the buyer should obtain the test results, determine who conducted the test, what areas of the house were tested, and what structural changes may have been made to the house after the test that might impact radon levels within the structure. All of these issues should be evaluated to determine if a new test might be necessary. The licensee should also disclose the result of the visual inspection of the property with regard to visible in-place radon mitigation devices or systems.
- The buyer’s agent should deliver to the buyer any state environmental hazards pamphlet.
- The buyer’s agent should advise clients regarding the health risks of elevated levels of radon, as well as explain the screening procedures available. The client should determine if a radon screening should be conducted. The agent should also direct the client to where informational pamphlets can be obtained and to state agencies where additional information can be obtained for radon health risk evaluation. You can visit this website for more details. https://www.epa.gov/radon/health-risk-radon
- If radon-screening levels exceed 4.0 pCi/L, the buyer’s agent should advise the buyer to evaluate radon test reading levels and the potential abatement costs. From the buyer’s standpoint, the mere presence of radon should not be the reason for not proceeding with the home purchase. Only when the total abatement program and the cost to abate are analyzed in terms of the overall transaction should the decision to purchase or not to purchase be made. The licensee should not recommend to the buyer the actual course of action that should be followed. The licensee may, however, be able to help the buyer evaluate the radon hazard found to exist in a specific property and the steps that will be necessary to lower radon levels to an acceptable level.
9.7 Molds and Fungi #
Molds that have a food source and adequate moisture will grow in an indoor environment, even in arid climates. Evidence of mold can be seen in the form of discoloration ranging from white-to-orange and from green-to-brown-to-black growing on various materials found inside and outside the house. Mold needs food and moisture sources to grow. The most common indoor food sources for molds are:
- Wood
- Paper
- Surface coatings, such as paint
- Soft furnishings, such as furniture, carpet, draperies
- Soil in potted plants
- Dust
- Shed skin scales
- Cooked and raw foods
In order to grow and survive, all molds require moisture. Hydrophilic types of fungi need conditions close to saturation, or at least very damp conditions. The Xerophilic types of fungi will grow in drier conditions, requiring only minimal moisture. The most common indoor sources of moisture for molds to grow are:
- Damp basements
- Damp crawl spaces (usually due to inadequate moisture barriers)
- Improperly installed or maintained rain drain systems
- Flooding
- Backed-up sewers
- Failed sump pumps
- Leaky roofs
- Humidifiers
- Mud or ice dams
- Constant plumbing leaks
- House plants (if watered too frequently)
- Cooking steam
- Shower/bath steam and leaks
- Indoor clothes drying lines
- Clothes dryers that are improperly vented
Types of Exposure
Molds and fungi are found everywhere, both outdoors and indoors. Much of the mold found indoors comes from outdoor sources. Therefore, everyone is exposed to some mold on a daily basis; usually without ill health effects. Ill health effects from fungi usually depend on the dose and duration of exposure to the mold source. The methods of exposure are inhalation, exposure to skin, and ingestion.
- Inhalation: Since mold spores can be airborne, exposure can occur through the lungs. Mold spores get into a house through windows, doors, cracks, and crevices. They also can be carried into a house from the outdoors on shoes and clothing, or on numerous other objects that may be brought home.
- Skin: Some humans experience skin irritation if their skin touches a moldy surface, noted by localized redness or swelling.
- Ingestion: A number of toxic fungal species can be found on spoiled food and agricultural products. These toxins can cause serious food poisoning. In some cases, severe liver damage or death can result.
Health Problems
- Infections: May be either localized internal or external infections. These infections are treated with drugs that target the specific area of the body where the infection resides. Often, external infections will lead to an inflammatory condition of the skin characterized by redness, itching, and oozing vesicular lesions that become scaly, crusted, or hardened.
- Respiratory Problems: Includes difficulties inbreathing, a dry hacking cough, chest tightness, shortness of breath, and wheezing. Existing conditions, such as those relating to hay fever and asthma, can be severely aggravated by fungi exposure. Exposure can also lead to hypersensitivity pneumonitis, which is a form of lung disease characterized by inflammation of the lung tissue.
- Nasal Passage Problems: Includes nasal and sinus congestion and nose and throat irritation. In some cases, nosebleeds may occur.
- Eye Problems: Watery, burning, or reddened eyes. In some cases, vision may become blurred and the eyes become extremely light sensitive.
- Central Nervous System Problems: Memory and verbal problems, vertigo, dizziness, depression, malaise, mood changes, or constant headaches.
- Fever
- Possible Death: In some extreme cases of exposure to extremely toxic fungi and mycotoxins, death can result. Death, however, is usually due to the toxin attacking a vital organ such as the liver or heart.
Detecting Mold
The most obvious way to detect mold is to visually inspect the structure for visible mold growth. Special attention should be paid to basements and lower rooms, crawl space areas, and rooms where there has been water or flooding damage. Window frames should be checked and carpets in areas where dampness is suspected should be pulled backed and examined. Since certain types of construction materials provide an excellent host for mold growth, ceiling tiles or any current or formerly damp material made of fibrous cellulose (such as wallpaper, books, papers, shredded newspaper, insulation, etc.) should be examined. Accessible areas of heating, cooling, and ventilation systems should also be checked for possible mold growth. As a rule, if you can see or smell mold, there is a problem.
Company Policy for Licensees regarding Mold and Fungi
The following policies should be followed by residential real estate agents in dealing with residential properties of one-to-four-units:
- All houses have the potential for a mold and fungi problem; climate is not a factor. The licensee should conduct a reasonable visual inspection of the property and identify any visible discoloration on surfaces that may be due to mold or fungi growth. The agent should also be sensitive to musty or damp smells within the structure. The listing agent should also determine if the seller has any knowledge of prior mold or fungi problems.
- The seller and licensee must disclose to the potential buyer any knowledge regarding current or past mold and fungi problems. The Seller must make the disclosures in the seller’s disclosures statements. If the Seller fails to make such disclosures and the agent has knowledge because of his visual inspection of the property, the agent must disclose to the buyer the results of the inspection.
- The buyer’s agent should advise clients regarding the health risks of molds and fungi, if they are found present in the structure. The agent should also direct the client to pamphlets and state agencies where additional information can be obtained for a mold and fungi health risk evaluation. You can visit this website for more details. https://cfpub.epa.gov/si/si_public_record_report.cfm?dirEntryId=56220&Lab=NERL
- If mold or fungi is found to exist on the property, the agent should discuss potential mitigation procedures and options with the buyer. The buyer’s agent should advise the buyer to evaluate the mold and fungi problem identified in the house and the potential abatement costs. While the licensee should not recommend to the buyer the actual course of action that should be followed, the licensee may be able to help the buyer evaluate the mold and fungi hazard found to exist in a specific property and direct the buyer to information that would be helpful for abatement.
9.8 Volatile Organic Compounds #
Volatile Organic Compounds (VOCs) are a diverse group of organic compounds that evaporate at room temperature. A typical indoor environment may contain as many as 100 different compounds, including formaldehyde. Other sources of VOCs may be found in household pesticides, cleaning agents, cosmetics, and dry-cleaned clothes. A common characteristic of all VOCs is that at room temperature, gasses are emitted into the atmosphere from their solid or liquid state. These compounds can be emitted as a gas for long or short periods of time.
Indoor levels of VOCs have been determined by the Environmental Protection Agency to exceed outdoor levels by as much as 10 times. Exposure to VOCs may result in both acute and chronic health effects. Since the existing knowledge base of the toxicological effects of VOCs and their mixtures is still incomplete, exposure to them should be minimized. This section will focus on two of the more common VOCs – formaldehyde and pesticides.
Formaldehyde
Formaldehyde is a colorless organic gas compound that has a strongly pronounced pungent odor. It is also an inexpensive preservative and bonding agent commonly used in house products, such as pressed wood, house insulation, glues, and finish flooring material. Because of its bonding characteristics, house construction trades have used formaldehyde for years. Although the off-gasses produced by the products were obnoxious, formaldehyde was thought to be harmless. However, in 1980, laboratory findings showed that exposure to formaldehyde could cause nasal cancer in rats. Since that study, the issue of whether formaldehyde increases the risk of cancer has been a subject of debate in scientific and health communities. By 1987, the Environmental Protection Agency classified formaldehyde as a “probable” human carcinogen, under conditions of unusually high or prolonged exposure.
Regardless of whether formaldehyde is a definite carcinogen, it certainly is known to cause allergic reactions in humans. Some studies have demonstrated that 10-20% of the population is either allergic or hypersensitive to the substance. In some cases, exposure to formaldehyde can increase a person’s sensitivity to other irritants or chemicals that were never a problem in the past, thereby making the individual allergic to almost anything. Formaldehyde itself is known to cause the following conditions in humans, even at low levels of exposure:
- Skin allergies and rashes
- Shortness of breath and wheezing
- Chest tightness
- Coughing
- Eye irritation
- Runny nose
- Nose bleeds
- Throat irritations
- Vomiting and nausea
- Sneezing
- Headaches
- Dizziness
- Sleeping difficulties
- Fatigue
The following are signs of acute exposure to formaldehyde:
- Abdominal pain
- Anxiety and depression
- Coma
- Convulsions
- Diarrhea
- Bronchitis
- Pneumonia
- Pulmonary edema
The seriousness of the above allergic reactions depends on individual sensitivity to formaldehyde, the duration of exposure, and the concentration levels at the time of exposure. The threshold level giving rise to minor symptoms for most people is at indoor air formaldehyde levels at or above 0.1 ppm. Sensitive people experience reactions to formaldehyde below the 0.1 ppm level. The World Health Organization recommends that indoor exposure should not exceed 0.05 ppm.
Formaldehyde in the House
Formaldehyde is an industrial chemical used to make many household products and building materials. Many people originally thought that formaldehyde was mainly a problem for owners of mobile homes, as the generally air-tight conditions along with extensive use of building materials that contained formaldehyde had a recognizable “mobile home” off-gas odor.
It is now known that in many houses formaldehyde can be a source of health problems, even in small amounts. It may take years for the formaldehyde to finally dissipate after being used in building materials and products. In older houses, studies show that the average concentration levels are well below 0.1 ppm. In houses with significant amounts of new pressed wood products, levels can be greater than 0.3 ppm. The following are some of its uses in building materials:
- Glues and adhesives
- Urea-formaldehyde foam insulation (UFFI)
- Pressed wood products (e.g., plywood, particle board, paneling, and wood finishes)
- Carpet
- Laminated flooring materials
- Cabinet fiberboards
- Drapery materials
- Used as a preservative in some paints and coating products
Of the products and materials listed above, those made with urea-formaldehyde resins as adhesives are the ones of most concern.
When products are new, emissions of formaldehyde are at the highest levels. As products age, emissions of formaldehyde decrease. Because of this, newer homes will usually have more of a formaldehyde issue than older homes.
Pesticides
It is likely that termites, cockroaches, fleas, fungi, weeds, insects, or rodents will eventually affect most houses. To address these pest issues, pesticides, insecticides, herbicides, fungicides, rodenticides, and disinfectants may be used inside the house or around the property. Many of these chemicals may only be used by trained and licensed applicators. For the do-it-yourselfer, others are available in hardware and grocery stores.
If a pesticide is classified as a restricted-use compound, both federal and state regulations usually apply. These regulations require applicator licensing and record keeping requirements relating to the name of the chemical applied, date of application, name of applicator, location of application, and weather conditions at the time of application.
While some indoor pesticide contamination can result from homeowner use of indoor pesticides, 90% of all pesticide exposure occurs indoors, although most of the restricted-use compounds are used outside of the structure. This occurs because the majority of the indoor pesticide contamination is tracked indoors from contaminated soils or dust, or is due to improper pesticide storage procedures. This is particularly a problem in rural areas where pesticides may be carried by air currents from applications on the field next door or perhaps even miles away!
Another source of pesticide contamination inside a house may be from the potable water supply. If the potable water supply is from a public municipal water system, there should be little concern. Federal laws require constant monitoring of municipal water supplies for numerous chemicals and VOCs. However, private wells may be a source of pesticide contamination. This may be from misapplication or over-application of pesticides or from improper chemical selection. Pesticides can leach through the soil, into the groundwater, and eventually into a well.
If improperly applied or released into a structure, pesticides can lead to serious health problems. Even limited exposure can cause symptoms such as dizziness, difficulty sleeping, muscular weakness, nausea, breathing difficulties, headaches, flu like symptoms, and watery eyes. Long term exposure or exposure to higher doses of pesticides can lead to allergies, cancer, or damage to the kidneys, liver, respiratory and nervous systems.
Whether the homeowner or a licensed professional applicator is doing the application of a pesticide, the manufacturer’s application, storage, and usage instructions should be followed to minimize exposure to pesticides.
Company Policy for Licensees regarding VOCs:
Real estate agents do not have the monitoring of sources of contamination from VOCs as a part of their job description. However, since indoor VOCs can have a major impact on the health of a house’s occupants, licensees should keep the following points in mind:
- If the buyer is purchasing a new or recently remodeled house, higher than acceptable levels of formaldehyde will probably be present. The agent should discuss the health concerns that formaldehyde may present, direct the buyer to sources of further information relating to formaldehyde, and should discuss various methods to reduce formaldehyde levels.
- In rural areas or houses that may have well water as their water source, the real estate agent should be aware of potential contamination of the water supply by agricultural spraying and pest control applications. In these cases, the agent should recommend that the buyer obtain water quality testing. The real estate agent might also direct the buyer to information available through state or local agencies relating to the impact of agricultural spraying and pesticide applications on the inside of the house.
- Either prior to closing or after closing, many real estate transactions will require pest control applications. Often real estate agents are asked to recommend a pest control service. While the real estate agent might consult with the seller or buyer and caution them to carefully select a pest control applicator, the real estate agent is cautioned against recommending a specific pest control company. Some areas of inquiry the buyer may wish to pursue are the possible use of natural or petrochemical-free insecticides, discussion of possible allergies of house occupants, and documentation to verify proper insurance coverage of the company.
9.9 Potable Water Supply #
It is estimated that 70% of the earth’s surface is water, yet only 1% of that water is drinkable. While the United States may have one of the safest water supplies in the world, national or state statistics do not specifically indicate the quality and safety of the water coming out of the tap in a particular house. Water safety in a specific house depends on the condition of the water source from which it is drawn, the treatment it receives, and the condition of the potable water supply system in the house in which the water is consumed.
Domestic water is derived from public water supply systems or private wells. The U.S. Environmental Protection Agency and the State agencies regulate public water supply systems. Numerous other state and local agencies are also involved in the protection and delivery of safe drinking water throughout the nation.
No water is naturally pure. In nature, all water contains some impurities. As water flows in streams, sits in lakes, and filters through layers of soil and rock in the ground, it dissolves and absorbs the substances it touches. Some of these substances are harmless, but even naturally occurring minerals are considered contaminants at certain levels, as the water may be unpalatable or even unsafe. The majority of substances that are absorbed into water from natural rock or soil conditions are harmless. However, once humans have introduced contaminants into the soil or streams from factories, farmlands, or even by people in their homes or yards, the water supplies may be contaminated with any number of chemicals or toxic substances.
The federal Safe Drinking Water Act of 1974 is the primary federal law protecting drinking water supplied by public water systems (those servicing more than 25 people). Under the law, the U. S. Environmental Protection Agency (EPA) is the leading federal agency given responsibility for setting national standards for drinking water. The national standards established by the EPA are required to be enforced by the states. The drinking water standards are intended to address drinking water at two levels. The first level relates to public health. The regulations in this area relate to the maximum contaminant level for more than 80 contaminants that may occur in drinking water that pose a risk to human health. When it is economically or technologically not feasible to lower a maximum contaminant level relating to a specific contaminant, then prescribed treatment techniques are required to prevent adverse health effects of the contaminant on humans. The second level of regulations relates to taste, odor, and appearance of the drinking water.
In 1996, President Clinton signed the Safe Drinking Water Act Amendment of 1996 (SDWA). Among other things, SDWA requires that, beginning in 1999, all public water systems must prepare and distribute annual reports to its customers. These reports inform the customer as to the source of their system’s drinking water, results of monitoring the water supply system during the prior year, and information on health concerns associated with violations that occurred during the year. In addition, a water supplier must promptly inform the consumer if the water supply has become contaminated by something that can cause immediate illness. In its notification process, it must provide information about:
- The potential adverse effects on human health.
- The steps that the system is taking to correct the violation.
- The need to use alternative water supplies until the problem is corrected.
SDWA also has many new provisions that will help states and water supply systems to improve the quality of drinking water by preventing problems before they occur. It has become clear that the best way to protect the nation’s water supply is to protect the water at its source. For example, the act requires that each state develop a program to identify potential contamination threats and determine the resulting susceptibility of the drinking water sources such as watersheds, ground water, or reservoirs and restrict activities that may harm the source water. Once the potential contamination source is identified, the state must develop a program to address that contamination source and its prevention from entering the water supply.
In administering the provisions of the 1974 Safe Drinking Water Act and the subsequent Safe Drinking Water Amendments of 1996, the EPA has identified approximately 80 contaminants that must be monitored in the nation’s domestic water supply systems. These contaminants fall into the following general categories:
- Bacteria.
- Protozoa and viruses – Common examples of protozoa contaminants are giardia and cryptosporidium.
- Nitrates – Agricultural activities which use fertilizers or generate manure contain high levels of nitrogen and phosphorus. These substances often leach into the water supply through water runoff. Stomach and liver cancer along with reproductive problems are often linked to nitrate contamination.
- Volatile Organic Compounds – Examples of these compounds are industrial solvents, dry-cleaning solvents, benzene, gasoline, paints, and etc.
- Synthetic organics.
- Inorganics/metals.
- Lead and copper – These metals usually are introduced into the potable water supply as a result of water being carried through pipes containing lead, or lead solder, and water coming in contact with brass faucets. Even in small amounts, lead in the water supply can be a problem, especially in small children. Lead may accumulate in the body over time and eventually reach unsafe health levels.
- Pesticides – This group of contaminants may be fungicides, insecticides, and herbicides. Land application of pesticides may subsequently leach into the water supply. This is particularly a problem in areas relying upon well water.
- Radon – Houses relying upon well water are more subject to exposure to radon from the water supply than houses relying upon public water supply systems. As water passes through the shower head or other water release points, the radon present in the water is released into the air. Fortunately, in most cases, radon released into the air from a house’s water supply is usually minor. Long term exposure to radon can lead to lung cancer.
At a minimum, homeowners relying upon well water would be well advised to test the water in their system once a year for coliform bacteria, nitrates, pH, and total dissolved solids. Testing for sulfates, chloride, iron, manganese, hardness, and the system’s corrosion index should be done every three years.
Company policy for Licensees regarding Potable Water Supply:
The following policies should be followed by Associates with respect to potable water supply issues:
- If the water supply is from a well, the real estate agent should ask the seller about past well water testing. The agent should also suggest that the seller obtain a current well water test and make it readily available to buyers as a part of the seller’s disclosure obligation.
- Agents working with buyers should recommend a well water analysis report as a part of the buyer’s due diligence obligations. This should especially be the case if the property is located in agricultural or industrial zones or has the potential for buried fuel tanks.
- If contaminants are found to exist in the tested water supply then the real estate agent may be asked to assist the buyer in dealing with issues relating to mitigation of the contaminants identified. Outside professionals should be appointed to help resolve the issues. This may include locating the source of the contamination, water treatment options, and possibly obtaining alternative potable water supplies. Agents may provide a list of these outside service providers upon request to the buyer who then can select the provider they determine they wish to hire. The agent should not determine which service provider to hire. Since the issues dealing with water are often costly, the real estate agent may be involved in additional negotiations with the seller with respect to price adjustments and other options necessary to solve the water contamination problem.
- The real estate agent should recognize the majority of property conditions that should lead to water testing. When the agent identifies these conditions as present, the agent should recommend the necessary water tests to the seller or buyer as appropriate.
9.10 Drug Houses/Clandestine Drug Labs #
Beginning in the 1980s until the present time, clandestine methamphetamine drug labs are a serious problem. Methamphetamine is referred to by many street names, including “meth,” “speed,” “crank,” “chalk,” “zip,” and “cristy.” The smokable form of the drug is called “L.A.,” “ice,” “crystal,” “64glass,” or “quartz.” The drug has a powerful effect on the central nervous system, stimulating the brain and spinal cord by interfering with normal body chemical neurotransmission.
The production of methamphetamine can now be found in virtually all areas of the country. Labs are found in rural, city, and suburban residences, barns, garages, outbuildings, back rooms of businesses, apartments, hotel and motel rooms, storage facilities, vacant buildings, and even in motor homes. The problem with methamphetamine labs is simple; many of the ingredients used in the production of the final product are highly toxic. Each pound of meth produced leaves behind five or six pounds of toxic waste. Meth cooks often pour leftover chemicals and byproduct sludge down plumbing drains, storm drains, or directly onto the ground. Chlorinated solvents and other toxic byproducts used to make meth pose long term hazards because they can persist in the soil and groundwater for years. Once a property has been used to produce the drug, many of the ingredients used in the production of the drug, as well as the byproducts produced during the manufacturing process, leave a contaminated environment. Any house or property used to produce meth presents a serious health threat to those who occupy or even simply enter the premises.
If meth has been manufactured in a property, there may be serious health issues resulting from entering or occupying the property.
A person entering a structure that has been used to produce meth will detect an unpleasant chemical/ammonia smell.
Many people describe the smell as similar to that of cat urine or fingernail polish remover. Other signs of meth production are excessive amounts of chemical drums or other containers on the property which at one time contained solvents, drain cleaner, or antifreeze. Most people entering a meth lab will experience immediate eye irritation, throat irritation, and in many cases, respiratory discomfort. A common reaction is a tightening of the throat and an experience of lightheadedness or headache. Acute (short-term) exposures to high concentrations of some of the chemicals used in meth production, such as those law enforcement officers often face when they first enter a drug lab, can cause severe health problems including lung damage and burns to different parts of the body. Unlike other drugs, meth production can destroy a property and make it unhealthy to inhabit and costly to clean up.
Many state legislatures have recognized that houses used for the production of meth can lead to serious health problems in people either entering them or living in them and have taken steps to identify and monitor contaminated drug house cleanup. As an example, Washington requires owners to make sure that there are no more than 5.0 micrograms of meth residue per square foot in a house. For example in Oregon, the level is 0.5 micrograms. Oregon also takes steps to warn prospective buyers or tenants about contaminated residences. It places drug labs on a special list and information about the possible hazards are branded (added) to the property title. As another example, in California, they enacted the Methamphetamine Contaminated Property Cleanup Act of 2005. Until a property owner subject to Section 25400.25 receives a notice from a local health officer pursuant to Section 25400.27 that the property identified in an order requires no further action, all of the following shall apply to that property, except as otherwise required in Section 1102.3 or 1102.3a of the Civil Code: the property owner shall notify the prospective buyer in writing of the pending order and provide the prospective buyer with a copy of the pending order. The prospective buyer shall acknowledge, in writing, the receipt of a copy of the pending order. (California Health & Safety § 25400.28).
Check with the specific State laws regarding exact clean up methods and exposure levels. Below is an example of how to clean up a former meth lab in the State of California .
Cleaning Up Clandestine Meth Labs
The safest way to clean up a former meth lab is to hire an environmental company trained in hazardous substance removal and clean up. If the owner of the property desires to do the cleanup, extreme caution should be exercised as the contaminants give off fumes, penetrate the skin, and result in severe health problems. For most property owners, the cleanup costs are not covered by insurance.
The Methamphetamine Contaminated Property Cleanup Act of 2005
The Methamphetamine Contaminated Property Cleanup Act of 2005 is found in the California Health and Safety Code Section 25400.10 – 25400.47. The purpose of the Act is to identify properties contaminated by hazardous chemicals used in the manufacturing of methamphetamine, provide cleanup standards, and standards for determining when a site of a closed methamphetamine laboratory has been successfully remediated.
The statute specifies that any structure containing methamphetamine on indoor surfaces exceeding 1.5 micrograms per 100 square centimeters is unfit for human occupancy. In addition, if the methamphetamine manufacturing process included the use of lead or mercury compounds, the property is considered unsafe for human occupancy if the total level of lead is greater than 20 micrograms per square foot or the level of mercury is greater than 50 nanograms per cubic meter in the air. The following is a brief outline of the procedures that must be followed with respect to methamphetamine contaminated property:
- Within 48 hours after receiving notification from a law enforcement agency of potential property contamination by methamphetamine laboratory activity, the local health official is to post a written notice WARNING that the contaminated property has been seized and that it is unlawful for an unauthorized person to enter the contaminated premises.
- Within five working days after receiving a notification from a law enforcement agency of known or suspected property contamination due to methamphetamine laboratory activity, the local health officer shall inspect the property to determine if the property is contaminated. If the health officer determines that the property is NOT contaminated, the WARNING notice must be removed. If the health officer determines that the property is contaminated, within 10 days the following must be done:
- File with the county recorder a lien on the real property in an amount equal to the costs incurred to inspect the property plus the county recorder’s fee. If the contaminated property is a mobile home or recreational vehicle, a restraint on the mobile home or vehicle must be filed. Any lien filed shall have the force, effect, and priority of a judgment lien. The restraint filed on a mobile home or vehicle clouds the title and prevents its transfer until the restraint is released.
- An order prohibiting the use or occupancy of the contaminated property must be given to the property owners, those occupying the property, or any person having an interest in the property.
- Once the real property owner or mobile home or vehicle owner receives an order prohibiting the use or occupancy of the contaminated property, the property owner must, within 30 days, retain the services of a methamphetamine laboratory site remediation authorized contractor to remediate the contamination.
The remediation contractor is to submit a work plan to the health officer. Once the remediation work plan is approved by the health officer, the remediation work is to be completed within 90 days. If the local health officer determines that the property contamination has been satisfactorily remediated, within 10 days of making that determination and upon receipt of payment for the amount of the recorded lien, the real property lien or restraint on the title of the mobile home or property shall be released. If the property owner does not initiate or complete the remediation of the property in compliance with the health officer’s order, the city or county in which the property is located may take action to remediate the contamination. The property owner then becomes liable for the costs of the remediation. If the real property owner does not pay the city or county for the remediation costs, the city or county may record a nuisance abatement lien against the real property. The abatement lien becomes a priority lien and an enforceable judgment lien.
A property owner of a methamphetamine contaminated property is liable for all of costs related to the contamination, including but not limited to testing, cost of maintaining records relating to the contamination, cost of remediation, disposal expenses, actual cost incurred by the local health officer in the testing and oversight of the remediation project, and all costs resulting in harm to public health or the environment relating to the contamination.
Only contractors that have undergone special training and meet other requirements relating to methamphetamine contamination remediation may perform the remediation work.
Company Policy for Licensees Regarding Potential Clandestine Drug Lab
The following policies should be followed by Associates:
Real estate agents should learn to recognize the signs of a potential Clandestine drug lab.
The more common observations are:
- Strong cat-box/ammonia smell within the house.
- A maroon colored residue on aluminum.
- Bottles or jugs used extensively for secondary purposes.
- Odor of ether, chloroform, or other solvents.
- Garbage containing paraphernalia.
If a real estate agent finds a Clandestine drug lab, the agent should:
- Immediately leave the property.
- Alert local law enforcement.
- Advise the seller that all of the procedures set forth in the Methamphetamine Contaminated Property Cleanup Act of 2005 (in California only) must be followed. Check with your State for exact procedures outside of California .
If a real estate agent suspects a drug lab, the agent should discuss it with the seller. Many sellers may have rental property and not know that Clandestine drug manufacturing had occurred on the property. If drug manufacturing is confirmed, it becomes a matter of seller/agent disclosure once the remediation has been completed and the property is again able to be occupied. Prior to any further occupancy of the property, contamination cleanup is required.
NEVER take a listing or write a purchase contract for a home that is suspected to have ever been a potential Clandestine drug lab without the Brokers written approval.