Disclosures, Schmosures: First, Make Sure Would-Be Buyers Don’t Get Hurt!

MINOLTA DIGITAL CAMERAA recent California case is being hailed as an expansion of the listing real estate broker’s duty to warn buyers of dangerous conditions within the house. The case is called Hall v. Aurora Loan Services, LLC, 2013 DJDAR 5460 (April 26, 2013). In many ways, however, it’s a reminder of how common sense, rather than reliance on the letter of the law, can save home sellers a whole lot of hassles — such as broken legs and lawsuits.

Here’s what happened. The home seller, prior to putting the house on the market, commissioned a home inspection. This is a common practice among sellers in order to get a heads-up on home defects and potentially fix some of them before buyers have a chance to use them as negotiating points. The inspector’s report mentioned that the pull-down stairs leading to the attic needed “repair and replacement.” (Not, obviously, the stairs shown in this artsy image.)

Wouldn’t you think common sense would be screaming in your ear at this point, “Fix it!”? Or at least put up a warning sign? Or at least ask more questions if you weren’t entirely clear on what the report was saying?

But neither the seller nor the selling broker did any of that. Instead, in keeping with California disclosure obligations, they provided copies of the inspection report to everyone who visited the house. One of those visitors was a real estate agent with her clients. The clients ascended the stairs, the real estate agent followed, the stairs collapsed, and the agent fell and broke her leg. Lawsuit time!

Not terribly surprisingly, the court said, in essence (yes, I’m paraphrasing hugely here),  “Don’t just hand people the darn report, tell them the stairs are dangerous!”

But really, the most pithy commentary on this whole sad sequence of events was offered by the bloggers at the Law Offices of James J. Falcone, who said: “The [court] opinion doesn’t say how the clients, now stranded in the attic with the agent writhing in pain on the floor below, got out of the attic.” Indeed, court opinions often leave out the most interesting facts!