Beware of Pools

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By Jennifer Felten 

Both California common law and California Civil Code section 1102 require a seller to disclose information to a potential buyer about the property that are material to their decision to acquire the property.  California has a set form, called the Transfer Disclosure Statement, that is used for this purpose.  However, if there is a material item not on the form, more information needs to be provided.  Agents also have to disclose if they know of an issue with the property.  There is a form for that as well called the Agent Visual Inspections disclosure.

Of the things a seller and listing agent must disclose, one is dangerous conditions on the property.  In one situation, there was a prospective buyer checking out a property.  The property contained an empty pool.  The Multiple Listing Service listing contained a warning statement, “Please use CAUTION around the empty pool.”  While viewing the property, the prospective buyer decided to stand on the base of the diving board in order to see over the fence.  Unfortunately, the diving board broke loose from the base and the prospective buyer fell into the empty pool, sustaining serious injuries.  Neither the seller or the listing agent knew that the diving board was defective, and the listing agent had not found any breaks, cracks, or other damage to the diving board during their preliminary investigation of the property.  In addition, a pool inspector had inspected the pool and did not report any concerns about the diving board.

The prospective buyer sued the listing agent for a failure to disclose the danger of the diving board and pool.  On appeal, the Court determined that the listing agent was not liable for the injuries because of two main reasons, first there was no liability as the listing agent has had no notice that the diving board had any defects.  Secondly, the Court found that, because the empty pool was a danger that was so obvious that any person would be reasonably expected to see it, the listing agent had no duty to remedy or warn of the danger.

Jennifer Felten

Jennifer Felten, Esq., Relaw Ms. Felten specializes in representing both individuals and legal entities, providing representation and guidance on a variety of real estate related matters.  Relaw APC 699 Hampshire Road, Suite 105 Westlake Village, CA  91361 US Phone: (805) 265-1031 or email her at: jennifer@relawapc.com 


Upcoming Speaking Engagements

October 14, 2017 – California Escrow Association Annual Conference

 

For inquiries or questions about having Ms. Felten speak to your organization please email info@relawapc.com.

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