Jim Duncan's musings

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.”

Bolding above is mine. This is but one more reason where I tell buyer clients "I don't know" when I truly don't know. And a reason I do not step outside of my scope of expertise.

I'm pretty damn sure that cleaning up smoke from a house is an expensive and thorough process, but I'm always going to recommend that the buyer confirm this independently with someone who actually does that for a living.

Lastly, would it be too easy to jump to the conclusion that the buyer should have had independent representation?

Part I is here.