The presence of mold is becoming an increasing concern in real estate transactions. It is fast replacing radon as a significant concern of buyers in the residential real estate market.

What is mold? Mold is a living fungus which is present everywhere. It especially thrives in dark, damp areas such as basements and heating ducts, but can exist anywhere the conditions are right. Mold can be benign or toxic. While there are more than 100,000 known types of mold, only two types are toxic – stachybotrys (the most common) and memnoniella. Toxic mold is frequently referred to as “black mold” – although not all black colored mold is toxic. Toxic mold can affect people with weak immune systems and infants and can lead to serious health conditions in certain individuals. Once discovered, mold can usually be remediated by providing for the safe removal of the mold contaminated material from the structure and a treatment plan to avoid future problems.

There are a number of ways buyers of homes can protect themselves against buying a home with a serious “mold problem.” Buyers can make sure they have the home inspected specifically for mold, by either a general home inspector (if qualified) or a certified inspector who specializes in testing for mold. These inspections are usually performed pursuant to a home inspection contingency or a specific mold inspection contingency contained in the contract for the purchase of the home. Check to be sure that the home inspection contingency in the sales contract provides that the presence of mold will be deemed a defect sufficient to terminate the contract, unless it is remediated by the seller.

In addition, a buyer should insist on complete disclosure by the seller regarding any pre-existing mold problems as well as any water problems such as flooding, damp basements, leaking roofs and leaking pipes. If such issues are disclosed, the buyer may want to follow up with specific mold inspections of the suspect areas.

If an inspection reveals the presence of toxic mold, or mold of a sufficient amount to cause potential health problems for the home buyer, then removal of the offending mold should be negotiated before the sale is consummated. An alternative remedy is for the seller to provide a credit to the buyer at closing for any mold remediation.

Finally, the potential home buyer needs to determine when and if the existence of mold poses a sufficiently serious health hazard to warrant the termination of the contract – and if so, the Buyer must then be willing to walk away from the transaction by validly terminating the contract under the home inspection contingency.

Helping the home buyer through this process are various professionals: the buyer’s attorney; the buyer’s realtor; and the inspectors. Each one should be informed about the extent to which the buyer has a concern about the potential presence of mold and whether the buyer seeks to order specific testing to determine the possible presence of mold.

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