Q: I bought a house last year that had gone through a foreclosure many months earlier. I used a local real estate agent to represent me. He was OK in the way he handled the sale and I didn’t have very many complaints when it was all over. But over the past several months I have had water leaking through the roof in at least two places.
I called my real estate agent and he gave me the name of a roofing contractor to call. The guy came out and crawled into the attic. He said it was obvious to anyone who looked that the roof had been leaking for a long time.
I called my agent back and told him about the findings. I pointed out that the agent had done an inspection of the house during escrow and showed him where he had written that the “house looks like it’s in good shape.” The agent said there was nothing he could do and that he wasn’t responsible. Isn’t the agent liable for not catching the roof leak?
A: Maybe, sort of, but probably not.
So let’s back up.
Real estate agents have a legal obligation under the Civil Code to do a visual inspection of a home when they are representing either the seller or buyer. They then make a written disclosure of their findings on the Transfer Disclosure Statement, the mother of all residential disclosures. I’m sure that’s the inspection you were referring to.
But there are real limits on what a real estate agent is expected to be able to find.
The Civil Code lays out the “standard of care” a Realtor must use in representing you. Simply put, a Realtor must use, “the degree of care that a reasonably prudent real estate licensee would exercise . . .” California Civil Code §2079.2.
So what does that mean? Well, that’s potentially for two lawyers to hash out in court.
The simple explanation is your real estate agent’s standard of care is whatever the lowest acceptable standard of care in the industry is. Frankly, you’ll find that’s a common standard in most professions.
In court, lawyers argue about what that standard is.
Here’s the practical way it breaks down in your situation.
Most Realtors aren’t builders or contractors and everyone knows it. There’s no reason to suspect that your Realtor knows more about design and construction of a home than you do.
If there were signs in the house that water was leaking, your Realtor would be expected to see the same things you would be expected to see. You, too, have a legal obligation to pay attention. You can’t deliberately be blind, deaf and dumb just so you can blame someone else later.
Now the limitation the law imposes on the Realtor’s visual inspection is that they have no obligation to inspect anywhere in the home that’s “reasonably and normally inaccessible to this type of inspection.”
Clearly looking in an attic is beyond what your agent is obligated to do. Same goes for crawling under the house.
On the other hand, if there was water staining on the Sheetrock on the ceiling, or it was obvious someone had recently covered up such staining, there would be an obligation to disclose it.
If all of this sounds confusing, join the crowd.
Realtors, home sellers and buyers, judges and juries, all get confused by the requirement that a Realtor conduct an inspection.
As a general rule for anyone buying a home, my recommendation is nobody should rely on their Realtor’s inspection.
It’s always a good idea to put out the few bucks it takes to get a pest and roof inspection. If those inspectors find anything suspicious, you can always call in other specialties so you know what you’re buying.
Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected].