A few years back I was the listing agent on a nice house on acreage in Camino. I never met the buyers, who were represented by another agent, but about a year after closing I received a call from their attorney who demanded a significant amount of money from me for my failure to disclosure to the buyers that a bear lived in the nearby woods.
As it turned out, nobody in the neighborhood had seen a bear and no one had experienced any property damage with the exception of a few dinged up trash cans. Still, the buyer believed I should have warned him that a bear he considered a neighborhood nuisance lived in the area. The buyer’s attorney demanded that I pay to have his entire six acres fenced with bear-proof fencing or face the consequences of a protracted and expensive lawsuit.
I felt the law was on my side of this issue. After all, I didn’t represent the buyer, the seller had never mentioned any bear issue and I had never observed one roaming around the neighborhood. For a Bay Area transplant to accuse me of concealing a pertinent fact that would have affected his decision to buy the home I considered ridiculous. If agents are required to disclose the existence of bears in nearby woods, shouldn’t other mammals, insects and reptiles be included. I was eager to present my side of the story and imagined myself as the great orator and attorney Clarence Darrow, skillfully leading a jury to a conclusion in my favor.
An unfortunate aspect of our judicial system, however, is that it’s very costly to get your day in court and tell your side of the story. We settled the issue and today my standard property disclosure warns prospective buyers not only about bears living in rural El Dorado County but other critters that may be considered a neighborhood nuisance.
California real estate law requires sellers and their agents to make a written disclosure, called a Real Estate Transfer Disclosure Statement, to buyers regarding the condition of their property. That form is the basis of all other disclosures and asks the seller if they are aware of any “significant defects/malfunctions in any fixtures and features of the home.” The form further questions the seller as to their knowledge of other conditions that may affect the value of the property such as “zoning and building code violations, flooding/drainage issues; CC&Rs and deed restrictions and neighborhood noise or other nuisances.”
Often sellers and their agents dismiss the statutory TDS as yet another frivolous disclosure. In fact, the law requires preparation of the TDS with “honesty and in good faith” where the seller sets forth any property defects “known or suspected” which may “negatively affect” the value or desirability of the property. The theory here is that sellers know their home’s imperfections and buyers should have that information in order for them to make an informed decision before they enter into a purchase contract.
When completing the TDS, most sellers are pretty conscientious about pointing out this or that in their home that doesn’t work. What they miss the whole house or pest inspector will usually find. But when it comes to the question about neighborhood noise or nuisances, they usually check “no” and move on to the next question.
The California Civil Code 3479 defines a nuisance as “Anything which is injurious to health … or offensive to the senses or an obstruction to the free use of the property, so as to interfere with the comfortable enjoyment of life or the property.” As written, the law is subject to broad interpretation.
The sight of roaming deer and turkey in a neighborhood could be enjoyment to the naturalist but a pest to the gardener. The sound of a jazz band playing at a local winery may be enjoyed by some and an irritant to others. Folks who live in Cameron Park don’t consider their airport a nuisance but newcomers to the area could.
The California Appellate court in Alexandar v. McKnight found for the plaintiff who claimed late night basketball games and parking too many cars on the property constituted a nuisance. Since it had a negative effect on the market value of the property it should have been disclosed on the TDS.
Every neighborhood has a few nuisances: The rock band that practices in the garage down the street, the guy with the leaf blower early Sunday morning and the skateboarders intimidating the pedestrians. Most nuisances are sporadic, transitory and often unintentional. They become issues that need to be disclosed, however, when they are persistent and diminish our enjoyment of the property as well as decrease its value.
Buyers should be suspicious when no mention is made of neighborhood noise or nuisances on the TDS. They should perform their own investigation. One way is by visiting with the neighbors and asking some pointed questions about the neighborhood. Another is driving around the neighborhood at different times during the day and evening. But despite these efforts, a neighborhood nuisance is frequently beyond the capability of a buyer to discover. Therefore, buyers have the right to rely on the sellers disclosures.
When in doubt about what constitutes a neighborhood nuisance, sellers should over-disclose rather than under-disclose. Not every buyer may enjoy the sight of those deer and turkey gracefully browsing their neighborhood.
Ken Calhoon is a real estate broker in El Dorado County. He can be reached at kencalhoon.com.