Lawsuit Against Realtor Over Second Hand Smoke Disclosure Raises A Stink

Reblogger Lori Lincoln And Associates
Real Estate Agent with Top Agent Serving Dighton Taunton, Rehoboth and more! 9525483

Looks like Realtors may have to knock on the neighbors door to see if anyone smokes?? This is nuts!

Original content by Richard Vetstein

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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Charlie Ragonesi - Big Canoe, GA
Homes - Big Canoe, Jasper, North Georgia Pros

We had a case like this in Georgia. In this case a buyer bought in the country for peace and quiet > But about 1/2 mile away was a quarry . In this case he woke up to the blasts. Now this 1/2 mile was as a crow flies and on country roads could be more than a mile aways. So nobdy knew.  WE have changed our laws to put the onus of discovery on the buyer for conditions like this

Feb 16, 2010 11:34 PM #1
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker



This is a very interesting case.

However, the agent knew:

1) there was a problem,

2) the plaintiff was particularly vulnerable, and

3) extensive renos and painting were really not going to cure the problem.

In that regard, this case is not that extraordinary. The agent should have done something. Buy something else, might have been better advice.




Feb 16, 2010 11:41 PM #2
Scott Baker Coldwell Banker West Shell - Liberty Township, OH
Realtor Homes for Sale Cincinnati/Dayton Ohio

What kind of crazy law is that? MA governing body must be nuts. We get all kinds of different reasons why someone doesn't buy a home too big, too small, paint color, brick color, neighborhood, etc. What difference is it to another buyer? Ridiculous law, Big Brother watching and taking care of who? The buyer should be responsible for discovery in issues such as this, there are simply TOO many possibilities.

(and by the way, as the buyer stated, she knew about the smoke BEFORE she bought. Should take the broker off the hook, if there is a shred of personal responsibility in MA)

Thank you

Feb 16, 2010 11:47 PM #3
Joseph Jones

What if the neighbor farts too much?  Will agents have to disclose this as well?


Apr 13, 2010 06:24 AM #4
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