Legal Question in Real Estate Law in California

Re: Asbestos

Asbestos is a fibrous mineral substance, naturally occuring in a few places on earth, where it used to be mined and processed as an ingredient in insulating materials and for other purposes (reinforcing concrete pipe, for example). Over the years, it was learned that exposure to asbestos fibers is likely to cause harm to human lungs (asbestosis) and can cause cancer. Use of asbestos as a building material has stopped, at least in this country, but older buildings and industrial installations likely still contain asbestos in walls, as pipe or furnace insulation, and elsewhere.

Most asbestos in buildings is in a relatively or completely harmless form, being securely "glued in place" in cementous formulations with concrete or plaster. Not always. Further, if the "safe" asbestos concoctions get broken up and release dust, as might happen if repairs are made, harmful asbestos may be released.

Buildings constructed pre-1981 are likely to contain asbestos. The asbestos is likely to be safe if left undisturbed. The hazard arises during repair, remodeling, etc. where dust is created. It might also occur as the result of an earthquake.

As far as I know, there is nothing to prevent a landlord from inserting a "disclaimer" in a lease. It would, of course, be an illegal fraud for a landlord to deny the presence of asbestos if he knows or should suspect its presence. Thus, a disclaimer may either be ineffective or, in some cases, a negligent or fraudulent misrepresentation.

If I were advising the tenant, I'd say disregard the disclaimer and make some independent inquiry whenever work is done that might release raw asbestos in a dangerous (dusty) state. If I were advising the landlord, I'd tell him not to rely on a disclaimer, but to take pro-active staps to make sure tenants were not at risk from release of asbestos.