House Lawyer

Buyers with hypersensitivity disorder should raise their concerns early

By Harvey S. Jacobs
Special to The Washington Post
Saturday, September 18, 2010

For people who are seriously allergic or sensitive to common household chemicals, buying the right home is fraught with difficulty. But with a cooperative seller -- and some important protections written into the purchase contract -- the hazards can be manageable.

Highly sensitive buyers may need to avoid homes that have had any pesticide treatments; been recently painted; had repairs involving drywall, caulking, adhesives, glues or chemical finishes; had mold or moisture issues; or have elevated levels of radon. They may have to avoid homes with carpeting or that had smokers living there or air fresheners in use. Such buyers may think they are unique, but there are many people facing these issues. The Merck Manual of Diagnosis and Therapy generally defines these concerns as Type I Hypersensitivity disorders, which are also sometimes called atopic allergies. According to the Department of Pathology at the University of Cambridge in England, some 20 to 30 percent of the population exhibits some Type I Hypersensitivity.

It is unlikely that most newly constructed homes will meet the requirements of a hypersensitive buyer because so many potentially troublesome products are used in the construction process. It may be better to focus on buying an existing allergy-free abode -- or a home that can be made "allergy-free."

Because the real estate contracting process is quite extensive, I highly recommend that hypersensitive buyers create an introductory contract addendum that they can present to sellers before even touring a home. That addendum would briefly explain Type I Hypersensitivity and the specific types of conditions that would eliminate the home as a potential match. In effect, it's a property disclosure and disclaimer form, which all sellers are required to provide to prospective buyers, only in reverse.

By raising concerns early in the process and eliminating those homes and sellers that will never be viable as early as possible, buyers will save themselves and all other concerned parties much time and anguish.

For homes that qualify, that addendum becomes part of the legally binding purchase contract.

The addendum would include more inspection contingencies than the typical termite, radon and general home inspections usually called for in a purchase contract. Buyers will want the legal right to hire an environmental inspector to check for levels of volatile organic compounds found in items such as paint, and for the presence of formaldehyde found in furniture made of pressed wood. Similarly, buyers will want to have a certified mold inspector check for elevated levels of moisture.

The purchase contract needs to be written so that any unsatisfactory inspection report is grounds for terminating the contract. The addendum must also contain a contingency that allows the buyer out of the contract if any of the conditions change between the date of the inspections and the closing date.

For example, suppose that upon moving out, the sellers noticed many holes in the walls from picture hooks and helpfully filled them with spackle and paint. That innocent act would constitute grounds for the buyer to cancel the contract and get the earnest-money deposit back.

Finally, the addendum should provide for a pre-settlement occupancy period during which the buyer can actually reside in the home to make sure that, despite everyone's best efforts, there was not some unforeseen chemical or condition that triggers a reaction that makes the home uninhabitable for that buyer.

A seller would, of course, want certain rights in exchange for these unusual requests. For example, it would be perfectly reasonable for a seller to want to keep his property on the market prior to settlement. Similarly, I would expect a seller to want to accept backup contracts until all of the contingencies had been satisfied. A seller could reasonably expect the buyer to pay for all inspections, and for any damage to his property as a result of any of those inspections.

Of course, a buyer would also be expected to pay a fee for the trial occupancy period and to waive in advance -- and in writing -- any claims the buyer may have under local landlord/tenant laws or for any damages the buyer may suffer as a result of the occupancy tryout.

As with all real estate contracts, everything is negotiable. I would suspect that given the right incentives, a buyer may be able to locate a home that either meets his requirements or that can be made to meet them. It will then be up to the buyer, his real estate agent and/or his real estate lawyer to negotiate the terms that accommodate his needs.

Harvey S. Jacobs is a real estate lawyer in the Rockville office of Joseph, Greenwald & Laake. He is an active real estate investor, developer, landlord, settlement attorney and lender. This column is not legal advice and should not be acted upon without obtaining your own legal counsel.


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