Lawsuit Against Realtor Over Second Hand Smoke Disclosure Raises A Stink

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Lawsuit over second hand smoke

Yesterday the Boston Globe reported on a controversial lawsuit by a Alyssa Burrage, a condominium buyer, against a realtor over the disclosure of second hand smoke emitting from downstairs neighbors. Click for the story: Suit Over Second Hand Smoke Targets Real Estate Broker. As the hundreds of comments to the story indicates, this lawsuit raises a host of legal and public policy issues. I’ll focus on the legal issues.

Under Massachusetts consumer protection regulations governing real estate brokers, a broker must disclose to a buyer “any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”  This is somewhat of a subjective standard; what may matter to one buyer may not matter to another. If a broker is asked a direct question about the property, she must answer truthfully, accurately, and completely to the best of her knowledge. Further, a broker cannot actively avoid discovering the details of a suspected problem or tell half-truths.

With that legal backdrop, let’s review the facts of this case. Ms. Burrage, who suffers from asthma, claimed that her broker failed to disclose the existence of the heavy smokers downstairs—despite the fact that she admittedly smelled “the unmistakable stench” of cigarette smoke at several visits to the unit. The broker – who worked for the same company as the listing broker (which may raise some thorny conflict of interest/agency issues) – assured her that the smell would dissipate once she painted and renovated the unit, the suit claims. Ms. Burrage claims that she wouldn’t have purchased the unit in the first place if she had known about the smoke problem.

The case boils down to the appropriate scope of a broker’s duty to disclose potentially adverse property conditions, not only within the property itself, but off-site. The Massachusetts Supreme Judicial Court has held that off-site physical conditions may require disclosure if the conditions are “unknown and not readily observable by the buyer [and] if the existence of those conditions is of sufficient materiality to affect the habitability, use, or enjoyment of the property and, therefore, render the property substantially less desirable or valuable to the objectively reasonable buyer.”

This case has all the makings of a very slippery — and dangerous — slope for real estate brokers. If Ms. Burrage’s claim is accepted, realtors would be conceivably obligated to investigate every neighbor to determine whether their smoking (or other bad habits) will negatively affect the particular buyer’s use or enjoyment of the property. That’s patently unrealistic. Where then does the law draw the line? If it’s not smoking, it’s smelly food preparation (don’t laugh, I’ve dealt with those cases), marijuana smoking, loud parties, floor stomping, or other “noxious” behaviors. Buyers of condominiums have to accept that they aren’t buying into a pristine, sanitary bubble.

I’m not unsympathetic to Ms. Burrage’s plight. I’m not a smoker, and I cannot stand the smell of cigarette smoke. But to me, this is really a neighbor-to-neighbor issue. The realtor should have no liability in this type of case.

A very interesting case indeed…

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Re-Blogged 2 times:

Re-Blogged By Re-Blogged At
  1. Lori Lincoln Team 02/16/2010 11:30 PM
  2. Marian Pierre-Louis 02/21/2010 10:02 PM
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second hand smoke

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Gary L. Waters, Broker Owner, Waters Realty of Brevard, LLC
Waters Realty of Brevard, LLC - Rockledge, FL
... a small office, delivering big service!

Seems like if the buyer admits the stench was present it had been disclosed by the environment. Seems ridiculous to expect the broker to determine he smoking status of nearby units. Sounds like an ambulance chaser!

Feb 11, 2010 04:14 AM #1
Thomas McCombs
Century 21 HomeStar - Akron, OH

I can see where this would also apply to single family homes where a neighber has outside campfires or burns leaves, or smokes cigars or has loud parties. Breathing and life style issues are everywhere.

There is no end of possible targets for lawsuits in this area. How in the world can we Realtors ever protect ourselves from these kinds of claims?

Akron, Ohio

Feb 11, 2010 04:20 AM #2
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

My initial reaction is that this sounds to be a pretty frivolous suit.  But, reading the facts as you state them, there could be some liability when promising something that wasn't accurate.

Feb 16, 2010 11:58 PM #3
Richard Vetstein
Vetstein Law Group, P.C., TitleHub Closing Services LLC - Framingham, MA

Jury sided with realtor today!

Feb 17, 2010 06:16 AM #4
Jim Mushinsky
Centsable Inspection - Framingham, MA

I read the article and am interested by the comments of "faulty memory" and "self serving hindsight".

Also intresesting to note that the condo association settled with her out of court.

Feb 17, 2010 07:15 PM #5
Roy Kelley
Realty Group Referrals - Gaithersburg, MD
Roy and Dolores Kelley Photographs

Thanks for sharing. All of us need to keep an eye on the changing disclosure requirements.

Feb 21, 2010 10:08 PM #6
Andrea Swiedler
Berkshire Hathaway HomeServices New England Properties - New Milford, CT
Realtor, Southern Litchfield County CT

Richard, glad the jury sided with the Realtor, this time. But this sounds like a hot coffee at MacDonalds type of case. Scary indeed. It brings visions to mind of having to knock on all the neighbors doors and ask a few pointed questions: Do you smoke? And what exactly do you smoke... Do you drink? Do you have parties? Are you or anyone in your household "screamers"? I mean really, come on.

How do these things make it all the way to court in the first place.

Feb 21, 2010 11:40 PM #7
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