Legal Question in Real Estate Law in California
Condo bought ''as is'' has abestos, Who pays for removal?
10/28/05, I bought an office condo on a ''as is'' basis. Upon beginning renovation, the contractor found abestos tiles underneath the carpet. He says to place vinyl flooring correctly, the tiles would need to be removed. When talking with the dual agent broker of the deal, she said that since this was an as is purchase, the sellers do not have to be liable for this. In the disclosures there was an enviromental site assessment done where abestos was found in other suites. But only vacant suites and common areas were sampled and where abestos was found, it was removed. Occupied suites were not sampled. Who is liable for the costs of removal of the abestos?
3 Answers from Attorneys
Re: Condo bought ''as is'' has abestos, Who pays for removal?
The bottom line is did the sellers know? If so, they failed to disclose. Give me a call.
Re: Condo bought ''as is'' has abestos, Who pays for removal?
Who is liable for the cost of removal? It depends.
If you bought "as is" and the seller disclosed that there was asbestos, then you will almost undoubtedly have to bear the burden of removing the asbestos. This is because it was disclosed.
If the seller did not disclose the existence of the asbestos, then you might be able to compel the seller to pay for its removal. But this is going to depend largely upon (1) whether the seller knew about it, and (2) what steps you took during escrow to investigate the condition of the property. If the seller didn't know about the asbestos, and you didn't undertake your own investigation (which presumably would have revealed its existence), then it is unlikely that a court (or an arbitrator) would find that the seller is obligated to remove it.
There are complicated contractual and statutory issues involved in a real estate transaction. The amount of money at stake will dictate how far you proceed against your seller. Moreover, the written purchase/sale agreement will likely call for mandatory mediation (at paragraph 17, if you used the C.A.R. form) and arbitration (if you and the seller opted for the provision). You should consult an attorney familiar with residential real estate disclosure/nondisclosure issues.
Keep in mind that sometimes, containment of the asbestos is a better solution than removal. Consult a qualified asbestos abatement company for more information.
We are real estate litigators with experience in this complicated area of the law. If/when you are ready to proceed and need an attorney, please call or email us.
Re: Condo bought ''as is'' has abestos, Who pays for removal?
The previous answer assumes this is residential property, and if it were, your chances of winning in court (or in arbitration) might be about as described. Unfortunately, it is commercial real estate. In a commercial transaction, the buyer is assumed to be more sophisticated and less in need of protection from undisclosed flaws. Note, for example, that Civil Code section 2079 regarding brokers' duties to inspect and inform applies only to sales of one-to-four unit residential properties.
Also, it seems to me that the delivery of site inspection reports disclosing the presence of asbestos in other suites was sufficient to put you on inquiry notice that asbestos was likely to be present in the unit you bought.
I think you should talk to a local real-estate attorney with some experience in site contamination litigation, prepferably asbestos related, because there could be some precedents I'm not aware of, particularly in view of the strong attention site-contamination issues, particularly asbestos-related, have received. Still, I don't think your chances of prevailing against the seller are good.
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