John and Jane Doe were such a nice couple. They’d lived in Los Alamos for decades. Recently John had retired from LANL and with the kids and grandkids living in Florida, it seemed the perfect time to retire to a much smaller home in a warmer climate.

John and Jane listed their house for sale and were eager to see what sort of nice, young family might move into the place and fill it with laughter and children. They’d kept up with the maintenance on their Barranca Mesa home, making repairs when necessary and updating here and there. John was a pretty handy guy and enjoyed home improvement projects.

Enter Mark and Mary Smith. A young family new to the area, Mark had just been employed by LANL and the couple was looking forward to raising their two young children in such a wonderful small community. Purchasing the house on Barranca Mesa would stretch their budget, but Mark and Mary had been looking at real estate in Los Alamos for over a year and this house was the first one they’d really fallen in love with. By crunching the numbers and making some adjustments to the family budget, Mark and Mary were able to make an offer on the house.

The purchase process was a whirlwind! There were a few minor repairs necessary after the inspection, but within sixty days the young family was moving out of their tiny apartment and into their lovely new home. John and Jane Doe could not have been happier for Mark and Mary Smith. The fall temperatures would soon give way to winter and John and Jane were glad to be packing their things and moving to Florida before the first freeze of the year. They were looking forward to a stress free retirement.

Moving is always a bit hectic, but Mark and Mary enjoyed making the new house into their family home. There were a few minor issues of course. Aren’t there always? A week or two went by. The temperatures started to dip a little lower. And Mark and Mary soon started to notice that their hot water heater wasn’t doing a good job with keeping up with their family’s needs.

Mark isn’t a DIY kind of guy, so he called a repairman. The repairman explained that the hot water heater was older and sediment build up inside had decreased its capacity. Mark and Mary had known that owning their own home would come with maintenance costs. The cost of a new hot water heater seemed within their means and they decided to go for it. After all, they could get a newer, energy efficient model and probably cut their energy costs and have far more hot water available for their growing family.

During the Doe’s long years owning the house, John had enclosed the hot water heater into a set of storage cabinets in the back of the utility room. The cabinets created a lot of handy space, but they also made it rather difficult to work on the hot water heater. The workmen disassembled the cabinets and got to work. And THAT is when they found a very unpleasant overgrowth of nasty mold that seemed to be growing beneath the hot water heater and all they way up the wall. The workmen took the rest of the cabinets apart and discovered the mold stretched the entire length of the utility room.

Hot water heater installers don’t do mold remediation. The contractor called Mark at work and told him it was time to call in a professional to handle this issue. Mark hung up with the contractor and called his real estate broker. It had only been two and half weeks since they’d closed on the house. Surely, the seller had some responsibility for this issue?

Mark and Mary’s broker took another thorough look at the disclosure statement for Mark and Mary’s home. There was no mention of problems in the utility room that could have led to a mold issue. The broker then contacted John and Jane’s broker and asked if there had ever been repairs in the utility room or problems with the hot water heater. It took several days for John and Jane’s broker to reach them in Florida.

John and Jane Doe were shocked to hear about the mold in their former home. Of course they’d had no idea that there was a mold issue in the house. After some thought, John remembered that he’d had an issue with the plumbing fixture on the hot water heater, but it had been a simple fix. A few new fittings from Metzger’s had stopped the tiny leak. John couldn’t imagine why he and Jane would have needed to disclose a leak that had happened nearly eight years ago and had been repaired without further incident.

Meanwhile back on Barranca Mesa, Mark and Mary were horrified to hear that their mold problem was going to cost eight thousand dollars to fix. The contractor at the restoration company explained that the tiny leak had only looked tiny. And while the leak was indeed repaired, the water had seeped down into the subfloor and up into the drywall and would require a complete remodel of the utility room and part of the ceiling and flooring above.

Mark and Mary contacted their broker. Surely they weren’t responsible for all of this damage if it came from a leak that happened before they owned the home? Besides, they didn’t have eight thousand dollars to pay for the mold repair!

John and Jane didn’t know what to do. Surely they weren’t responsible for all of this damage if the home inspector didn’t find it during the inspection? The leak was fixed. The hot water heater was working just fine when they sold the house!

That’s the thing. Nobody is right and nobody is wrong. As to who is responsible? That could be determined by the local courts if the buyer decides to take the seller to court for nondisclosure.

Here is the lesson. Disclose. Disclose. Disclose! I cannot tell my clients enough times to disclose EVERYTHING. What repairs did you make to the house while you were there? Did you hire contractors? Were there permits pulled for the work? Were there things done to the house prior to your ownership? So many times sellers are tempted to put their home’s best foot forward. After all, if there weren’t any lingering defects from a project, why is it a big deal?

I think my little story tells you exactly what the worst case scenario could be. Poor Mark and Mary Smith! Had the disclosure statement mentioned a hot water heater leak, the inspector could have been tasked with more thoroughly inspecting that cabinet in the utility room. He very likely would have found the mold problem. Would they have bought the house? Probably. But they would have likely come in with a lower offer that would have left them with the cash to make the repairs.

Poor John and Jane Doe! They’re in Florida trying to enjoy their retirement! If they had just listed the hot water heater leak and repair on the disclosure statement, there was no way someone could accuse them on hiding anything. Did they knowingly hide a mold issue? Of course not. Had they realized that there was a huge home improvement project looming, they could have either fixed it themselves (possibly with the help of their home insurance policy) or they could have lowered their asking price to allow for the repair.

This is the takeaway, folks: The sale STILL would have happened. It just wouldn’t have caused so much upset afterwards. So once again…