Texas Asbestos Disclosure
What is Asbestos Disclosure in Texas
In real estate transactions done across the United States and various countries of the world, the seller of a property has a legal responsibility to inform the buyer of inherent defects or flaws within the property before completing the sale. This obligation also referred to as a disclosure entails making known in a documented format, issues likely to impact the home's value or safety. Examples of these include mechanical flaws, boundary disputes, paranormal activity, pest infestations, lead paint, and other toxic substances like asbestos. An asbestos disclosure, in particular, involves notifying buyers or tenants of the presence and location of asbestos within the structure and how it may affect their safety.
Before 1981 and the enactment of the Texas mesothelioma and asbestos laws, asbestos fiber was used to produce various materials such as roofing, ceilings, vinyl tiles, oil and coal furnaces, and steam pipes, amongst others. Its wide usage in the construction of homes, schools, and other buildings was due to its durability and heat-resistant nature. However, research has shown that long-term exposure to asbestos in a property is risky to human health. Major health hazards attributed to asbestos exposure include lung cancer, mesothelioma, pleural thickening, and asbestosis. In recognition of the dangers of this exposure, federal and state governments have instituted statutes to regulate the use and protect individuals from the related hazards associated with asbestos. At the Federal level, organizations such as the United States Environmental Protection Agency, Occupational Safety and Health Administration (OSHA), and the Consumer Product Safety Commission (CPSC) set standards for regulating asbestos and mandate disclosure in the workplace and commercial buildings. But at the state level, many state laws mandate homeowners to disclose information on asbestos on the disclosure forms provided to prospective buyers.
In Texas, the state laws prescribe that sellers of real estate properties must provide written disclosure of asbestos material on their properties before sealing a deal with the buyer. If the seller fails to make asbestos disclosures known, the buyer has the right to withdraw the purchase. Furthermore, where the buyer suffers loss as a result of the information concealed by the seller, the buyer can seek damages for financial costs incurred while depending on the seller's inadequate information.
Texas Asbestos Disclosure Laws
Texas Property Code provides the legal backing for disclosures in the state. Section 5.008 of the Code provides that the seller of a residential real estate shall give to the purchaser of the property a written notice detailing material defects concerning the property being sold. The law rightly lists asbestos components as one of the defects that the seller must give full disclosure of. If the seller fails to do so within the specified timeframe in the sales contract, the buyer can terminate the sale without any financial ramifications.
Apart from the property code, the Deceptive Trade Practices-Consumer Protection Act (DTPA) also mandates sellers to be transparent when engaging in real estate transactions. This statute recognizes real estate as a "consumer good" and every "false, misleading, or deceptive act" or practice in the conduct of any trade or business is considered unlawful. As such, when a seller fails to disclose asbestos information in an attempt to induce the consumer into buying a property they could be culpable under this act.
Do You Have to Disclose Asbestos When Selling a House in Texas?
Yes, sellers have to disclose asbestos when selling their houses as such an undisclosed hazard could inflict serious damage to an unknowing buyer. This is why Section 5.008 of the property code specifically highlights defects that should be disclosed in a written notice to the buyer and this includes asbestos. As such, whether the seller directly handles the sale or chooses to contract the transaction to a real estate agent or not, they have a legal obligation to make a full disclosure before sealing a transaction. If they fail to do this, the buyer could sue them. However, it is worth knowing that to disclose the presence of asbestos, the seller need not conduct any independent inspections of the property or hire a professional inspector to verify its condition. If they are unaware of the presence of asbestos components, they are free to indicate that it is unknown and would not be culpable after selling the house.
Does Asbestos Affect a Property's Value in Texas?
In most cases, the presence of asbestos in a property in Texas, affects its value. Asbestos is reputed for being a toxic material, which could be life-threatening for the inhabitants. However, it does not have to be a major factor in the sale of a home. According to the EPA, asbestos is not harmful unless it is exposed or airborne. In the home, asbestos fiber may be released into the air and inhaled or swallowed during renovation or cleaning activities that disturb asbestos-containing materials. When this occurs, the asbestos is trapped in the lungs or the digestive tract. But once the material is intact, the buyer needs not worry about safety hazards. If the seller is aware of the presence of asbestos, before selling the property, they may engage professional inspectors to confirm the state of the material and ascertain the need to have the material removed. If the inspector approves a removal, the seller may consider this option to help retain the value of the property. Alternatively, the seller can lower the list price of your home to compensate for repairs that the buyer will need to make. Needless to say, disclosing the presence of asbestos ultimately reduces the value of a property.
How to Disclose Asbestos on a Property
In Texas, sellers are required to fill out a Seller's Disclosure form. The purpose of the form is to disclose any issues with the house that is known to the seller and give the potential buyers information about the property. The document identifies all relevant information that the seller is aware of at the time of sale. Through the document, the prospective buyers are informed if the home contains asbestos and in what condition it is. Sellers may obtain the form from the state real estate association or board. If the seller contracts the sale to a real estate agent for the transaction, they can obtain the form for the seller to fill and sign off. The document must be presented before concluding the sale to avoid violating the provisions of the state property code.
Texas Asbestos Disclosure Form
An asbestos disclosure form is a legal document that contains information on the presence and condition of asbestos in a property. The essence of this document is to warn prospective buyers of this toxic substance to enable them to make smart decisions before concluding the transaction. More so, the form absolves the seller of any issue regarding the property that may occur in the future since they have warned the buyer of the existing defects. There are two different Seller's Disclosures notices available to sellers in Texas. The first form (TREC form OP-H) was generated and approved by the Texas Real Estate Commission - a government-owned entity while the other form belongs to the Texas Association of Realtors and is only available for use to real estate agents who are members of the association. Whereas the TREC form is a copy of the statutory minimum information required in Section 5.008 of the Texas Property Code, the TAR form is a bit more in-depth since it includes sections that provide more information for buyers. However, both forms comply with Texas statutory requirements related to the seller's disclosure, and as such, the seller may select any to fill and sign off with the buyer.
It is worth noting that sellers can only use the disclosure forms for single-unit homes. For other types of property (duplexes, commercial real estate, and apartments), the seller may need to create a written document to ensure that they still adhere to the Texas property code and other state property laws.
Can You Sue for not Disclosing Asbestos on a Property in Texas
Yes, real estate buyers are authorized to sue a seller when they fail to give full disclosure on the presence of asbestos on a property. In Texas, failure on the part of the seller to provide the facts about asbestos disclosures entitles the buyer to seek compensation under the Deceptive Trade Consumer Protection Act or the Statutory Fraud Act. Based on the provisions under Section 27.01(a) of the Statutory Fraud Act, the plaintiff (that is the complainant) does not need to present proof that the seller intentionally refused to disclose the facts about the existence of asbestos within the property before recovering the actual damages. As such, they can easily seek compensation from the seller. With these state statutory provisions, the buyer may obtain claims such as monetary damages, rescission of the agreement, or punitive damages, depending on the wrongful acts of the seller.
How to Sue a Seller for not Disclosing Asbestos on a Property in Texas
Usually, filing a lawsuit for an asbestos false disclosure begins with obtaining and filling out a complaint form and submitting it to the civil court. However, before getting the complaint form or commencing the litigation process, the plaintiff might need to present evidence that the seller erred in their obligation to disclose information about asbestos on the property. The plaintiff must demonstrate a lack of knowledge of the presence of asbestos before purchase.
Where the plaintiff sustains a health injury due to the seller's failure to disclose the information on asbestos, the buyer can present a medical report of the diagnosis as proof and recover damages for medical bills. In light of the complications that might arise in the litigation process, persons interested in taking this step may want to engage the services of an attorney.
