Real Estate Law Regarding Smokers
The following is a proposed change in Real Estate Law in Nebraska.
Please check with YOUR state Real Estate Commission (not the Board of Realtors) to see if the same subject has been discussed before them.
The following is the transcript of a discussion, in front of the Nebraska Real Estate Commission.
The disclosure form, and the inclusion on it, sought by the President of “GASP” could cost Home sellers THOUSANDS of dollars. THAT MEANS YOU!
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GASP Presentation of Proposed Amendment to Seller Property Condition Disclosure Statement-
At 10:30 a.m. Mark Welsch, President of Group to Alleviate Smoking Pollution, a non-profit company, which deals with tobacco issues addressed the Commission. Mr. Welsch requested that a question be added to the Seller Property Disclosure Statement form which will ask if anyone has smoked in the building or property. This would help persons who are sensitive to smoke. An example of a case was discussed where a potential buyer, who was sensitive to smoke, asked the seller if anyone had smoked in the house and when the seller said no, the potential buyer agreed to see the house. When the potential buyer came to look at the house, the smoke odor was disguised by the sixteen candles that were burning. After purchasing the house the buyer had health problems due to her sensitivity to cigarette smoke residue in the house. She had to purchase another house to live in until the first house was suitable for her. Not having the question on the Seller Property Condition Disclosure Statement has cost the buyer a lot of money.
Chairperson Gale asked if someone was going to cover it up and lie about smoking, how would it help to put the question on the Seller Property Disclosure Statement? Mr. Welsch stated that people are more willing to lie verbally than in writing, and if the person does lie on the form it is easier to prove in court.
Chairperson Gale was concerned with how the question would be phrased, perhaps the seller would have no idea if guests have smoked in the house. Is the Seller being asked about every instance when a house has been smoked in? Mr. Welsch conceded history may not be known, perhaps the question could be limited since the smoke should be gone in four or five years. Chairperson Gale asked if this is something that should be on a home inspection such as mold or pets since the seller could have limited knowledge.
Mr. Welsch indicated as more businesses change to a non-smoking environment, people are noticing greater sensitivity. The problem is going to increase. Chairperson Gale noted a difference between irritation and severe allergic reaction and the fact that residue may not bother some people. Mr. Welsch agreed that residue may not bother some but that can depend on how much smoking was done in the house and how often. If the question was on the Seller Property Disclosure Statement and a seller answered yes then a buyer has the opportunity to weigh the option.
Commissioner Poskochil indicated the form was not changed often and may change at a later date with other issues that may also be brought up to the Commission. Director Tyrrell stated the form gets reviewed approximately every two to three years and was last updated in 2004. Chairperson Gale asked Director Tyrrell if there were any questions on the form about allergies. Director Tyrrell replied no, there are, however, questions regarding toxic materials, chemicals or hazardous materials on the form. Mr. Welsch suggested that perhaps when the form changes it could get added to the toxic material question.
Commissioner Griess indicated that a person would still not write that they smoked five packs a day for twenty years, and the buyer will still not know if someone smoked occasionally or all the time. Perhaps this should be looked at but it is not a cure-all. If there is a high degree of sensitivity it should be put in the purchase contract. Commissioner Poskochil said this should be investigated by the real estate agent such as termites or carpet residue from new carpet, this is a burden on the agent representing the buyer-client. Perhaps this needs to be on inspections not as a broad question on the Seller Property Condition Disclosure Form. Mr. Welsch stated that the question on the Seller Property Condition Disclosure Form is just to get the response in writing.
Commissioner Johnson indicated that it could be taken under advisement, perhaps the Commission could look in to what other jurisdictions have done and on the next Seller Property Condition Disclosure form update, it would be reviewed.
Chairperson Gale asked Mr. Welsch to submit materials and a business card to Director Tyrrell who will contact him when the form gets reviewed next.
A motion was made by Johnson and seconded by Grady to consider this issue when the form is next reviewed. Motion carried with Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.
Preliminary Consideration of Builder/Buyer Exemption to Estimated Closing Costs Disclosure – Title 299, Chapter 5-003.11
Director Tyrrell presented a Preliminary Consideration of Builder/Buyer Exemption to Estimated Closing Costs Disclosure – Title 299, Chapter 5-003.11. Director Tyrrell indicated he saw no down side to approve this and it could solve the problem for the future. Chairperson Gale asked for this matter to be referred to a subcommittee on rule changes. Commissioner Poskochil asked what is the definition of a builder, or new construction, would a licensee be confined to the definition? Commissioner Poskochil asked if a licensee had to prove the buyer was a builder? Director Tyrrell suggested that it go to the established subcommittee for further discussion.
A motion was made by Johnson and seconded by Griess to send to the established subcommittee for recommendation. Motion carried with Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.
