Home Selling in 02474>Question Details

Tim Cahill, Real Estate Pro in Arlington, MA

Here's an interesting question for Realtors, et al! Let me set the situation: You're a listing agent and you get a listing for a nice

Asked by Tim Cahill, Arlington, MA Fri Jun 25, 2010

home... but it needs yard work. The seller, an elderly couple, can't afford to hire help, so you and some neighbors pitch in to help spruce up the yard. As the couple was elderly, they hadn't used the yard in years and had no idea poison ivy was present along a side fence. You end up getting a reaction from the poison ivy, but you don't tell the sellers. Reason being, since you pulled it up, you figured it was no longer an issue of concern. Subsequently, the presence of poison ivy was not listed in the seller's property disclosure.

The property is then sold to a family with children. The following spring (over a year after the sale), the new owners notice poison ivy growing and one of the children gets a rash. The owners call their buying agent and complain, saying it should have been disclosed. The buyer's agent then calls you, the listing agent, to ask if it was known there was poison ivy present at the time of sale, and if so, why wasn't it disclosed?

What would you answer?

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Answers

18
BEST ANSWER
Wow, here in NJ poison ivy is our state weed.

The question is more where DOESN'T it grow here.

Unless poison ivy is an extreme rarity in MA the buyers have to take responsibility for recognizing it, cautioning their children and dealing with it.
You thought you had dealt with it and that it was no longer an issue so technically, to your knowledge,poison ivy was NOT present at the time of the sale.

People really amaze me (not always in a good way) sometimes.
You, however, did good and I think your sellers were lucky to have you (and their helpful neighbors).
2 votes Thank Flag Link Sun Jun 27, 2010
Tell them to file a claim with their insurance company.

This is maddening.

They should treat the kids with some cream, get a gardener to clean it up and go on with your life.

Fred Glick
Web Reference: http://fglick.com
3 votes Thank Flag Link Sat Jun 26, 2010
poison ivy can be anywhere, just like mosquitos. its not something we think of disclosing? maybe this will become a new category? Maybe home inspectors should inspect for this?
This seems crazy to me..
3 votes Thank Flag Link Fri Jun 25, 2010
Thats absolutely crazy, its a weed and once removed can grow back. weed spray and move on is what they need to do.
Web Reference: http://www.mdmrealtyinc.com
2 votes Thank Flag Link Sat Jun 26, 2010
Some people are more affected by poison ivy than others. If you buried your dog somewhere should you have to disclose that too? I think it falls in the visible catergory. Get some weed spray. If people could die from it, I would personally disclose it. The mosquito answer below is good too. Its nature.
2 votes Thank Flag Link Sat Jun 26, 2010
This is a very interesting situation. First as a parent, poison ivy can be anywhere at anytime, treat it and then remove it and move on. Why would the buyers feel so inclined to call the buyers agent and then for that agent to call the sellers agent. It was just by chance that he/she came across it doing a "good deed" for the sellers. There has to more to the story and the buyers felt that this was the final straw and needed to vent to their buyers agent.
2 votes Thank Flag Link Sat Jun 26, 2010
P.S. Please explain to the buyer agent about Karma
Web Reference: http://www.mdmrealtyinc.com
1 vote Thank Flag Link Thu Jul 1, 2010
I'd answer:

Yes, it was known that there had been poison ivy on the property at some point prior to the sale. I'd say I did not know if there was poison ivy at the time of the sale (because I'd pulled it up and therefore might reasonably assume it'd been removed prior to sale). I'd add that I did not know if it'd return or be present the following year.

I'd continue that it wasn't disclosed because there was no reason to disclose it, any more than the disclosure of any plant or grass or weed or insect needs to be disclosed. (If I saw a mosquito, and sprayed some Raid at it, would I be expected to disclose, even if the mosquito theoretically could carry the West Nile Virus? If I saw a neighborhood cat or dog wander into the yard, would I be expected to disclose, even though that animal might have fleas that could transmit the bubonic plague? And even if there's no West Nile Virus or bubonic plague involved, mosquitos can bite and cause itching, as can fleas.)

And I'd say, as politely as possible, that poison ivy--like mosquitos--are a natural part of outdoor life and while I understand that the rash from poison ivy can be uncomfortable, that all appropriate disclosures were made.
1 vote Thank Flag Link Sun Jun 27, 2010
Don Tepper, Real Estate Pro in Fairfax, VA
MVP'08
Contact
Hi Tim!

Great question! I have to agree with Heidi on this one.... Poison Ivy is a weed, not an environmental hazard...or anything that could compromise the integrity of the property. It's a fact of life....like mosquitoes!

I'd be curious to see what other agents think...and a Real Estate Attorney if there is one out there who cares to chime in!

Thanks for the post!

Judy Boyle
RE/MAX Signature Properties
Marlborough, MA
1 vote Thank Flag Link Sun Jun 27, 2010
Your defense is: you did not, at the time, believe that the poison ivy that you removed was a material issue affecting the value, safety, and desirability of the property. You and all of us who read this sad story now know better, and we no longer have that defense should the same situation arise again.

The buyers are right, it should have been disclosed. But, your omission was not borne out of an intention to deceive. If you were diligent with the rest of the disclosures on the house, and you treated the buyers and their agent fairly and respectfully during the original transaction, it would be hard to prove negligence. A sincere apology to the buyers for the mistake should be sufficient Nobody is perfect.

The story reminds of that old adage "No good deed goes unpunished"
1 vote Thank Flag Link Sat Jun 26, 2010
Jim Walker, Real Estate Pro in Carmichael, CA
MVP'08
Contact
I don't think poison ivy qualifies as a material defect. Would they have NOT bought the home if they knew there was poison ivy in the yard? I doubt it.

Since you had pulled it up, as far as you were concerned there was no known poison ivy at the time of sale. And no one can tell if and when it will come back. I had my yard professionally eradicated years ago. Eventually it came back.

Good question though! It would be interesting to hear what an attorney would say.
1 vote Thank Flag Link Sat Jun 26, 2010
If I were the agent, i would put a bow on a bottle of this > http://www.scotts.com/smg/brand/roundup/stoppoisonivy/index.jsp
and drop it by the buyer agent's office.
1 vote Thank Flag Link Sat Jun 26, 2010
Because the listing agent knew there was poison ivy, he/she should have disclosed it to the other party; even though it wasn't on the sellers disclosure. Poison ivy is a menacing plant that poses a danger, especially to children that may be allergic. If the agent didn't know then this wouldn't apply. The buyers would then have to deal and/or settle with the sellers. Did it happen to you?
1 vote Thank Flag Link Fri Jun 25, 2010
Hi Tim

Great question. The sellers did not know about it and as a result they were not part of their disclosures. However, they should have been part of yours.

So you should inform them, what happened.

Good luck.
Perry
Web Reference: http://www.ruthandperry.com
0 votes Thank Flag Link Sun Apr 27, 2014
Wow! Much honored regarding the BA. Lots of great answers here and a part of me always feels when I've gotten a BA in the past that somebody accidentally hit the BA over my name, like maybe they didn't really mean to do it.
Now that I just embarrassed myself by admitting my insecurities, I think I'll go now.
0 votes Thank Flag Link Wed Jun 30, 2010
Again, we find another thing that is good about how we do things in NY. We have a law that in lieu of the property disclosure statement the buyer is given a $500 credit.
0 votes Thank Flag Link Sun Jun 27, 2010
Tim,
At this point, the Seller's agent needs to tell the Buyer's agent exactly what you told us.

However, if a similar type of situation arises in the future, the Seller's agent should disclose the information much earlier ( when the Seller's disclosure is provided), and, ideally this would be in writing.

Here in Florida, all agents must "disclose to buyers all known facts that materially affect the value of residential property." I realize the incident you refer to may seem extreme (Where does it end?), perhaps even petty or "nitpicky", but if you were the Buyer and had young children, wouldn't you want to know?

Also, this whole unfortunately incident could have been avoided if the agent had disclosed what he knew prior to Buyer and Seller going under contract.

All the best,
Maggie Hawk, REALTOR
(386) 314-1149
Watson Realty Corp.
0 votes Thank Flag Link Sat Jun 26, 2010
Poison ivy is not our SRPD here in Las Vegas. How could you know it would grow back and where it actually came from?
0 votes Thank Flag Link Fri Jun 25, 2010
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