Termites; Bugs That Have A Taste For Your Wallet
Termites are present throughout Central Illinois. All too often, potential homebuyers rely upon building inspectors to discover the existence of any termite infestation or damage. The problem with that reliance is that inspectors' contracts often exclude liability for any meaningful damages; in many cases, liability is limited to the fee paid for the inspection and report. Moreover, many inspection agreements provide strong language excluding liability as to termites. Finally, if the inspection report was obtained by the real estate broker, that broker is normally the agent of the seller, therefore there is no contractual relationship between the buyer and the inspector.
Another concern is the liability of the sellers. Illinois law requires the Residential Real Property Disclosure Report, which asks of the seller if he is aware of any current infestation of termites or other wood-boring insects. The statute defines awareness, however, to mean actual notice or actual knowledge without any specific investigation or inquiry. Proving actual notice or knowledge is often a very difficult hurdle to leap. Similarly, a seller is not liable under common law fraud for mere silence, although the Illinois Appellate Court has held that silence combined with active concealment is enough to state a cause of action for fraud.
We urge buyers to protect themselves by requesting form NPMA-33, Wood-destroying Insects Infestation Report, a form produced by the National Pest Management Association. This form is already required for federally funded loans, and there is less exculpatory language than most of the inspection forms commonly used. It also contains valuable warnings to the potential buyers. An inspection report that shows any evidence of past or present infestation or damage should be explored with a contractor or engineer. The added expense should be weighed against the huge expense of buying a home infested with termites.
Finally, before buying, potential purchasers should ask specific questions of the seller to determine whether he or she has any knowledge of past or current infestation or damage at the property or in the immediately surrounding area. The latter is important because termites, as winged insects, travel and an infestation in a neighbor's home is a red flag for a potential problem in your dream home. It is important to learn whether a potential home is already occupied by hundreds or thousands of insects that have already moved in.