Every state sets its own expectations when it comes to real estate sales, toxins, and disclosures.

In most parts of the country, from California to Texas and Rhode Island, real estate agents have a legal duty to notify prospective buyers if a property is contaminated by asbestos or another hazardous substance. 

Real estate agents can’t be held liable for asbestos-related contamination if they didn’t know about it, but intentionally withholding information—even information that may not seem important at the time of sale—could come at a very high and unexpected cost. 

Every home has its own story, whether it’s a brand-new build or a centuries-old farmhouse. 

Today, even with rising costs and tight competition, the real estate market is more diverse than at any other point in living memory. According to a report issued by Redfin, the average homebuyer will tour anywhere between 8 and 10 properties before making an offer. 

Older Homes and the Asbestos Risk

Furthermore, in recent years, homebuyers seem increasingly inclined toward older homes. 

In 2024, for instance, the median construction date of purchased residential properties fell well within the 1980s. Older homes are attractive for a number of reasons: aside from affordability, they’re often the best available options for buyers in oversaturated markets, particularly along the East Coast and in certain corners of the Upper Midwest. 

However, attractive as they may sometimes be, ageing properties can have problems beyond flaking paint and other easily amenable issues. 

America’s Delayed Regulation of Asbestos

In the not-so-distant past, when building codes and safety regulations weren’t as rigid as they are today, all sorts of structural elements were built with and reinforced by substances that can take a profound toll on occupants’ physical health and overall well-being. 

Lead-based paint is a good example of a once-common toxin that has not only been phased out of use but is now subject to intense regulation at the federal, state, and local level. But it is far from being the only toxin that could present issues for homebuyers, sellers, and real estate agents.

Homeowners Today Are More Skeptical of Toxins Than Ever Before

Aside from lead, asbestos is another common toxin that can be found in at least 30 million homes throughout the United States. 

A naturally occurring mineral, asbestos is strong, fireproof, and relatively expensive. This combination of traits made its use practical for the homebuilders of yesteryear, who could save big money on construction costs while marketing for-sale properties as far more durable and affordable than their asbestos-free counterparts. 

No amount of asbestos exposure is safe

We know now that asbestos, for all its many applications, is anything but safe: it is closely associated with a wide range of dangerous respiratory illnesses, up to and including malignant mesothelioma, a particularly aggressive type of cancer with a low 5-year survival rate. 

Health regulators have long said it’s safe to assume that any home, school, or office built during or before the 1980s contains asbestos. And, in our own survey of adults and prospective homeowners, AsbestosClaims.law found that asbestos is often a big sticking point for buyers.

Of the homebuyers AsbestosClaims.law surveyed, we found that: 

  • 36% said they’d only purchase an asbestos-impacted property if the seller or contractor paid for removal. 
  • 35% said they’d probably walk away from the deal entirely, even if the seller offers to remediate
  • 17% said they’re not sure how they’d respond 
  • 12% said they’d still probably purchase an asbestos-affected home and pay for monitoring and abatement out-of-pocket

In total, about 70% of all respondents said that the mere presence of asbestos in a home is reason enough to second-guess an offer. This isn’t the only potential problem for real estate agents and sellers, either. Aside from buyers’ all-around skepticism of asbestos-contaminated properties, many homeowners simply don’t understand that omitting information about asbestos from their seller’s disclosure could pave the way for civil action and, potentially, high-cost litigation. 

Real estate agents are held to a higher standard than homeowners when it comes to disclosures.

Homeowners, for instance, are typically required to inform buyers of any hazards present on the premises. Rules vary from one jurisdiction to another, but the kinds of disclosures required by law are usually broad and designed to cover any potential threats to the building’s integrity or the occupants’ physical safety. 

Regulations on Asbestos and Real Estate Liability

Under Tex. Prop. Code § 5.008(e), disclosures have to include information on: 

  • The types of utilities and appliances present in the home
  • Any defects or malfunctions in the property’s interior walls, exterior walls, roof, plumbing system, and other features
  • The presence of conditions that threaten the property, such as wood rot, terminate damage, or improper drainage
  • The presence of conditions that threaten occupants, such as toxic waste, asbestos, lead-based paint, and aluminum wiring

Seller’s disclosures are usually mandated irrespective of whether or not a seller is being represented by a licensed real estate agent. However, in Texas and in other states, real estate agents tend to be bound by comparatively stringent statutes. 

Disclosure is vital to avoid liability

In Virginia, for instance, an unrepresented seller has every right to sell a property as-is, without making any representations of or about its physical condition. But real estate agents must always disclose any material and adverse information they’ve received or should have uncovered in the performance of their ordinary duties. 

In fact, this elevated standard for licensees is a matter of law. Under Virginia Code § 54.1-2131 licensees must: 

  • Exercise ordinary care when engaging with buyers and seller
  • Disclose to the seller “material facts related to the property or concerning the transaction of which the licensee has actual knowledge” 
  • Treat all prospective buyers “honestly” and refrain from “knowingly [giving] them false information” 
  • Disclose “all material adverse facts pertaining to the physical condition of the property that are actually known by the license,” with the text of this statute using defective drywall as an example of a material adverse fact

Conclusion: Don’t bury your head in the sand (or asbestos fibers)

These types of rules are not unique to any one state and can be found, with varying language and caveats, in almost every state in the country. Critically, they also provide harsh penalties for real estate agents who fail to do their due diligence. In some cases, agents can lose their licenses if they conceal information; in others, a homeowner who is later injured by an asbestos-containing product or other defective building condition could be entitled to file a lawsuit, even if years have passed since an offer was made and the transaction completed.