New York Asbestos Disclosure
New York Asbestos Disclosure Act
Asbestos is a commercial name for a group of naturally occurring minerals made of flexible fibers resistant to electricity, corrosion, and heat. Asbestos was frequently used in constructing buildings and ships, making vehicle brake pads, and strengthening materials like cement, plastic, cloth, and paper to improve durability. Its versatility notwithstanding, asbestos has caused life-threatening conditions when inhaled or ingested. The diseases caused by exposure to asbestos-containing materials are mesothelioma, a rare and belligerent cancer, and asbestosis, a progressive lung disease. Likewise, asbestos-containing materials cause certain ovarian and laryngeal cancers when people are exposed to them.
Given the toxicity of asbestos, the state of New York enacted New York mesothelioma and asbestos laws. Pursuant to these laws and federal regulations, the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) regulate the use of asbestos-containing materials across the United States.
The Department of Environmental Conservation, Division of Material Management, governs the transportation and disposal of friable asbestos-containing waste, construction, and demolition debris in New York. The Department of Labor regulates asbestos abatement and removal projects. At the same time, the Department of Health Regulations oversees the training and certification of people working in the asbestos abatement industry and approves asbestos training providers in New York.
Further, asbestos regulations necessitate its disclosure when individuals want to buy property confirmed to be containing asbestos in New York. To this end, the legislature established the New York Real Property Law, which presents the Property Condition Disclosure Act (PCDA). The PCDA mandates every seller of residential real property to complete and sign a property condition disclosure statement. The property condition disclosure statement is an official form used for disclosure purposes in a property sale. The statement contains specific information and conditions concerning the property that the seller must make plain to the buyer before completing the transfer process. Suppose the seller chooses to omit some material facts about defects in the property or knowingly makes a false statement to a buyer; in that case, such a seller is liable for damages, especially if the omission or incorrect statement informed the buyer's decision to purchase the property.
New York Asbestos Disclosure Laws
The New York legislature established the New York Real Property Law § 460-467, creating the Property Condition Disclosure Act (PCDA). The law is contained in the Consolidated Laws of New York, Chapter 50, and Article 14. The law has eight sections which are the short title (§ 460), definitions (§ 461), property condition disclosure statement (§ 462), exemptions (§ 463), revision (§ 464), remedy (§ 465), the duty of an agent (§ 466), and liability (§ 467).
The New York Real Property Law highlights that the PCDA applies only to "residential real property" (New York Real Property Law § 461 (5)). Also, it concerns all contracts relating to the purchase of "residential real property," including long-term installment contracts and leases with either an option or an obligation to purchase the property (New York Real Property Law § 461 (2)).
New York Real Property Law § 462 contains the four types of disclosure that a seller should make. The disclosure includes general information, environmental information, structural information, and mechanical systems and services information. The general information includes property's age, the ownership of the property, utility surcharges of the property, and possession of the property. The environmental section includes the property's location, whether within a floodplain, near a landfill, wetlands, or agricultural district. The environmental information also includes whether the property contains asbestos, hazardous or petroleum products, or other toxic substances. The structural part of the disclosure provides information about water, smoke, fire, or insect damage and also informs about the condition of the beams, roof, and other such elements. The disclosure's mechanical systems and services aspect contain information about the water source, drainage, flooding, sewers, and utilities.
The disclosure statement covers other miscellaneous areas, including known defects on plumbing, heating, air conditioning, hot water, security, floors, foundation, walls, chimneys, and patio. Besides, the law stipulates that sellers should describe any defect in the property in detail on the disclosure form.
Additionally, the New York Real Property Law § 463 establishes certain disclosure statements for certain property transfers exempt from the PCDA. These exemptions include transfers ordered by the court in a lawsuit, transfer made to a lender to satisfy a mortgage or prevent foreclosure, transfer to another co-owner of the property or a spouse or a relative from a common ancestor, and transfer of newly constructed property that people have never inhabited.
New York Real Property Law § 464 also allows the seller to deliver a revised disclosure statement to the buyer if such a seller becomes aware of an inaccuracy in the original statement or if the seller discovers a defect after the delivery of the original statement. However, the seller is not required to revise or update the disclosure statement if there is an awareness of defects after the closing date.
The New York Real Property Law § 465 (2) further stipulates the risks and penalties for non-disclosure. A seller will owe the buyer a $500 credit towards the purchase price at the closing if the seller fails to timely complete and deliver the disclosure statement. Also, the seller is liable and can be charged for a "willful failure to perform" the law's requirement if such a seller fails to disclose the necessary information before sealing a contract fully.
Do You Have to Disclose Asbestos When Selling a House in New York?
Yes. Anyone selling a house in New York is obliged to make certain disclosure. New York Real Property Law § 462 specifies that a seller must make certain environmental-related disclosure. Hence, the seller is required to disclose whether the property contains asbestos or not. Although disclosure concerning the presence of asbestos in a property may instigate the buyer to negotiate for a lower price or ask for a credit to handle the repairs, yet, it is the right step to take to protect oneself from legal recourse due to asbestos presence in the building in the future.
Does Asbestos Affect a Property's Value in New York?
Yes. Asbestos on a New York property reduces its value most of the time. This is due to the extra cost required for repairs, abatement, or removal of the material in the building. The quantity of asbestos present, the location of the asbestos, and the state of the asbestos, whether undisturbed or exposed, can influence this cost.
How to Disclose Asbestos on a Property
A seller in New York needs to disclose known home defects to the buyer to avoid legal liabilities. Specifically, the New York legislature created the Property Condition Disclosure Act to aid the process of disclosure (New York Real Property Law § 460-467). The PCDA recommends the seller complete a standard disclosure statement form available on the New York Department of State-Division of Licensing Services website. The form has a section that allows a seller to disclose whether asbestos is present or not on the property. With this form, it becomes effortless for sellers to make the necessary disclosure on asbestos before selling a property.
New York Asbestos Disclosure Form
To help with the disclosure required by the PCDA, the Department of State – Division of Licensing Services created a standard form referred to as the Property Condition Disclosure Statement. This form is accessible from the website of the department. It has a space for the name of the seller or sellers of the property, the property's address, general instruction, and the statement's purpose. Likewise, specific instructions to guide the seller in filling the form is presented on the form.
The seller's statement section of the form is divided into four sections: general information, environmental, structural, and mechanical systems and services.
The general information section answers questions like the age of the structure or structures, how long the seller has owned the property or has occupied the property, features of the property shared in common with adjourning landowners or a homeowner's association, and whether there are certificates of occupancy related to the property.
The environmental section answers questions regarding petroleum products and hazardous or toxic substances known to have been spilled, leaked, or otherwise released on the property. The section informs whether the property is located within a floodplain, near a wetland, or in an agricultural district. It provides details about asbestos, radon gas, and home heating fuel on the property.
Also, the structural section answers the questions on whether or not there is water damage, smoke damage, termite or insect infestation, or damage. The section looks into disclosing any material defect in the roof, the roof's age, any material defect in the beams, lintels, and columns.
The mechanical systems and services section considers the water source and whether the source has been tested or not. This section considers the sewage system, the electric service provider, and whether the basement has seepage.
Can You Sue a Seller for not Disclosing Asbestos on a Property in New York?
Yes. An individual who purchased a property and later discovered that the seller failed to disclose vital information before the closing of the sale can sue the seller in New York. Specifically, an individual can sue a property seller for damages under the New York State Consumer Protection Law (New York General Business Law § 349). The law declares unlawful, deceptive acts or practices in any business, trade, commerce, or finishing any service in the state.
Therefore, an aggrieved buyer must act quickly after discovering a defect within the specified time frame by the statute of limitation in New York. The buyer needs to go over all documents regarding the property purchase to evaluate their rights against the seller. After this, the buyer can send a demand letter to the seller detailing the defect and damages required for repairs. If the seller responds to this demand letter, both parties can settle; if not, the buyer can file a lawsuit against the seller or the agent.
How to Sue a Seller for not Disclosing Asbestos on a Property in New York
There are certain considerations that a buyer needs to look into in establishing a case against a seller. For instance, a buyer may sue a seller for breach of contract and fraud or fraudulent misrepresentation. To sue a seller for a contract breach, the buyer must prove that the seller gave a warranty against defects in the contract for the property. However, the warranty does not merge into the deed. Also, to sue a seller for fraud or fraudulent misrepresentation, the buyer will need to prove that the seller made a statement (oral or written) of fact that was false. The buyer must establish that the seller knew that the statement was false or that the seller omitted a material fact. Similarly, the buyer needs to establish that they relied on the seller's information and that it was justifiable to do so.
After establishing these points, the buyer can file a case at the small claims court. Small claims court is a particular part of the court where one can sue for money without a lawyer. Anyone 18 years of age or older is eligible to sue in the small claims court. An individual can sue for $5,000 in city courts or up to $3,000 in town and village courts. Complainants can sue for up to $10,000 in New York City and $5,000 in Nassau and Suffolk counties. The New York courts website highlights the guide to suing for claims in small claims court.
On the other hand, if the amount a buyer demands exceeds the specified $10,000, the individual can file a case at the superior court. Filing at the superior court starts with pleading, which is filing court papers. The papers are then served to the other party. Plaintiffs are required to pay a court fee to start a case. Furthermore, the New York courts website highlights information on the steps to follow in filing a case at the superior courts and the stages the case will go through.
