March 11, 2001|By Robert Bruss, Tribune Media Services
The case history: Mary, a absolute acreage broker, listed for auction an acreage abode congenital in 1860. At the time of listing, Mary appropriate the acreage representatives, Jonathan and Joseph, access a lead-paint test, which they did. Environtech, a able testing firm, issued its address assuming absolute lead-paint after-effects in the house.
When sellers Jonathan and Joseph abounding out a lead-based acrylic acknowledgment form, they referred to the lead-based acrylic address but didn’t attach a archetype of it afore abiding the anatomy to Mary. Mary didn’t antecedent the “agent’s acknowledgment” area of the acknowledgment because she didn’t accept a archetype of the report, which she again requested from the sellers.
Several months afterwards Mary listed the home for sale, she showed it to Angela and Alex. Their acquirement action was eventually accustomed by the acreage representatives. Mary acted as a bifold abettor apery both the sellers and buyers.
Although Mary told Angela and Alex about the lead-based acrylic in the abode and of the absolute report, she was still clumsy to access a copy. As appropriate by the Residential Lead-Based Acrylic Hazard Reduction Act of 1992, Mary gave the buyers the album “Protect Your Family From Lead in Your Home,” accustomed by the Environmental Protection Agency.
The Environtech lead-based acrylic address was not supplied to Alex and Angela until the day of the auction closing. The buyers never active the cancellation for the acknowledgment anatomy because Mary did not ask them to assurance it.
The buyers after sued abettor Mary, her allowance close and the acreage representatives, Jonathan and Joseph, claiming violations of the Residential Lead-Based Acrylic Hazards Reduction Act. This federal law requires abode sellers and landlords, as able-bodied as their absolute acreage agents, of houses, condos and apartments congenital afore 1978 to acknowledge to buyers and tenants any accepted lead-based acrylic hazards.
The statute says any such being who “knowingly” violates the law shall be accordingly and severally accountable for acute damages. However, the act does not accord the client or addressee the appropriate to aish the auction or charter if the agent or freeholder fails to accede with the statute, including accouterment an EPA-approved lead-based acrylic advice booklet.
The law requires sellers to accommodate a lead-based acrylic acknowledgment form, including any annal and letters of accepted lead-based acrylic on the premises. Buyers charge assurance a cancellation for this advice back it’s accustomed to them.
The question: If you were the judge, would you aphorism abettor Mary and her allowance close bootless to accede with the federal lead-based acrylic acknowledgment law?
The decision: The adjudicator said yes.
In this aboriginal federal cloister accommodation on the issue, the adjudicator said the affirmation shows “the defendants knew the actuality of lead-paint hazards should be disclosed.” No reasonable board could acquisition the abettor and the allowance close did not advisedly breach the act, he said.
However, the affirmation is not as bright that the acreage representatives, Jonathan and Joseph, “knowingly” abandoned the act, so no accommodation can be fabricated as to their liability, the adjudicator said.
“There is no absolute altercation that defendants abandoned the acknowledgment claim by not accouterment a archetype of the lead-paint letters afore the arrangement was ratified,” the adjudicator said. Mary’s exact acknowledgment of the lead-based acrylic alone, he added, is not acceptable because the act requires acknowledgment of all accepted annal and reports, such as the Environtech report.
“There is annihilation arbitrary about the trebling of absolute amercement aloft affidavit of alive abuse of the statute,” the adjudicator said. This case may now advance to actuate the accountability of sellers Jonathan and Joseph, if any, and the acute amercement to be paid by the absolute acreage brokers, the adjudicator ruled.
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