Clearing the Air on Radon Testing: The Duty of Real Estate Brokers to Protect Prospective Homebuyers

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Fordham Urban Law Journal, Vol: 15, Issue: 3, Page: 767

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Usage 1990
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Winicour, Sheldon
FLASH: The Fordham Law Archive of Scholarship and History
Radon; Real Estate; Landlord; Tenant; Law; Property Law and Real Estate
article description
This Note recommends that the federal government create legislation that will impose a duty on real estate brokers to test homes for radon and to disclose the results to prospective purchasers. Based on a common law negligence theory, such a duty would become part of the current obligation of a real estate broker: (1) to conduct a reasonably diligent and competent search of property for sale; and (2) to disclose to prospective homebuyers all material defects affecting the value or desirability of the home. In his investigation, the broker must use the expertise and knowledge that derive from his training and experience as a professional. Initially, the Note addresses the dilemma of the homebuyer who discovers radon only after occupying the home and who has no formally defined cause of action based on common law precedent or statute. Part II traces the development of a real estate broker's liability in negligence to the recently imposed duty to discover and disclose latent defects. Part III analyzes the duty to discover and disclose latent defects with respect to radon and concludes that real estate brokers should have an affirmative duty to test for radon and to disclose the results to prospective purchasers. Finally, part IV recommends legislation to protect the unwary homebuyer who otherwise would take possession of the home and suffer potential economic loss and exposure to a carcinogenic substance.