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« HOW TO AVOID BEING SUED FOR NON-DISCLOSURE BY A HOME BUYER |
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The statewide organization known as United Contractors Association has retained the services of the Evers Law Group as general counsel to provide them information, guidance and assistance in promoting the Association’s interests in improving and maintaining high ethical standards for contractors statewide. United Contractors Association was founded by contractors for contractors and has a stated mission of furthering the interests of its members by achieving and maintaining the highest standard of work ethics, professionalism and business practices. United Contractors Association not only promotes and supports the notion that all contractors should be licensed but further works closely with the State Contractors Licensing Board in seeking out unlicensed, uninsured and unbonded contractors, either by way of false advertising and/or fictional license numbers, who are providing work to consumers who then expose themselves to damages as a result of poor workmanship by these unlicensed contractors. The Association at its website advises that the State Contractors Licensing Board is an overwhelmed entity who receives hundreds of complaints daily by unsuspecting consumers who have been ripped off. Generally, most of these consumers have paid for work that was not completed or are seeking damages for substandard work by unlicensed individuals, day laborers and underground tradesmen passing themselves as licensed, bonded and insured contractors. This type of activity causes millions of dollars in damages annually to personal, commercial and residential property. It is estimated there are well over one million unlicensed individuals or entities doing business as contractors in the State of California. Therefore, it is a daunting task which will require a united effort by contractors, consumers and state agencies to eradicate these unlicensed contractors and ensure that consumers are allowed to choose from licensed, bonded and ethical contractors when seeking such services. The United Contractors Association can be found at its website of www.gouca.org.
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As a home seller your most obvious risk following the sale of your home is having the buyer discover a defect in the house that was not disclosed during escrow. These buyers will generally express feelings of being the subjects of fraud and that you, the seller, knew of should have known of the defect that the buyer discovered. As well, these same buyers will convince themselves that you, the seller, should be held responsible for any and all damages suffered by the buyer. Translated, this means that you, the seller, should pay for any and all repair, replacement or construction costs necessary to remedy the defect. In addition to these damages that arise from the repair or construction necessary to remedy the defect, the buyer will also demand payment of all their attorney fees incurred in resolving the defect claim. The Standard California Real Estate form provides for the reimbursement of any attorney fees and costs incurred as a result of any claimed non-disclosure on behalf of the seller. Thus, the question for any seller becomes ... "how do I protect myself from these types of claims by a buyer?" Initially, and most obvious, is the advice that sellers disclose truthfully and accurately the conditions, whether they be negative or positive, of the home. However, even if the seller and its agent are truthful, this will not eliminate a lawsuit being brought by the buyer. There is, however, a little used or known method of further insulating and in fact immunizing a seller from liability for non-disclosure, imagined or otherwise. More to the point, California Civil Code §1102.4 provides an immunity for sellers or transferors of a residential property who transfer the property with no personal knowledge of any known error, inaccuracy or omission as it relates to the disclosure of defects to a potential buyer. That is based upon the requirement that the seller or transferor retains the services of a licensed engineer, land surveyor, geologist, structural pest control operator, contractor or other expert including home inspectors that prepare and deliver to buyer and seller a report of those findings following an inspection or investigation as to any potential defects that may exist at the property. In plain English, that means if you as a seller insure that during the escrow process a home inspection is done by a licensed home inspector or other licensed contractor or engineer, any defect that was not found or disclosed during escrow cannot be used as a method or means to assert liability and obtain monetary relief from you as a seller from your buyer. Thus, if a buyer makes a decision not to have a home inspection performed, you as a seller may choose, and I would suggest you do so, to pay for the inspection yourself and provide a copy of that report to the buyer. This would then insulate and protect you and in fact provide immunity for you for any lawsuit brought by the buyer at some time in the future for non-disclosure of a known or even unknown defect. When considering the fact that a home inspection costs generally anywhere from $300 - $500, this equates to only one or two hours of attorney’s time defending a lawsuit brought by a buyer against you. An attorney could charge you as a seller anywhere from $10,000 - $50,000 to defend such a case. Clearly, spending a minute percentage of that amount at the outset during the sale could save you literally thousands of dollars in the future. One could safely assume that if this type of immunity is provided, it would act as a buffer and deterrence to a greedy plaintiff’s attorney who represents the buyer in these types of lawsuits. Remember, you as a seller are not covered by insurance policies for these types of claims. If you are interested in other means and methods of protecting yourself during and after the sale of your home, please do not hesitate in contacting the Evers Law Group.
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The Evers Law Group again forced a client’s prior insurance carriers from the 1960s, 1970s and 1980s to pay for the defense and settlement of a lawsuit brought by a plaintiff diagnosed with mesothelioma following thirty plus years of exposure to asbestos. The Evers Law Group has successfully obtained insurance coverage for clients under policies that were sometimes issued forty years ago. By procuring insurance coverage for these clients, Evers Law Group has saved its clients literally hundreds of thousands of dollars in attorney fees, expert costs and ultimately settlement of these lawsuits. The Evers Law Group has obtained coverage in some instances without actual insurance policies but rather by way of secondary evidence such as canceled checks, insurance certificates and other public documents. Recognizing the fact that these lawsuits brought in asbestos and mesothelioma cases can result in settlements and/or jury verdicts in the millions of dollars, obtaining insurance coverage can save a business from financial ruin. The Evers Law Group has defended asbestos claims brought by major plaintiff law firms specializing in asbestos and mesothelioma cases such as Brayton * Purcell, Harowitz & Tigerman, Baron & Budd and Kazen, McClain et al. Based upon the development of ongoing relationships with these major law firms, the Evers Law Group has obtained quick and efficient settlements and in some cases outright dismissals of its clients. If your business has been sued and now finds themselves in an asbestos-related lawsuit, you may contact the Evers Law Group to explore not only the defense of the actual lawsuit but exploring the reimbursement of any and all costs you may incur from your prior insurance carriers.
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