Mediation

Agoura Hills, California, mid-May 2001.

"Hi Susan! This is Joe Miller."

"Hi Joe! It’s great hearing from you! How are you and Terri enjoying your new home?"

"We’ve got bamboo!" Joe said excitedly.

"What happened?!" I responded, not sure I understood what Joe had said.

"We can’t use our yard!" cried Terri hysterically on the extension. "He means, we’ve got BAMBOO!"

"I don’t understand. What’s the problem with bamboo?" I asked innocently.

Joe and Terri Miller (not their real names) had closed escrow on their new home six months before. They went on to explain how their neighbor’s bamboo plant had sent shoots underground for years until the shoots had infiltrated the Miller’s entire backyard.

According to their gardener, who also worked for the seller, the shoots sprouted every year between May and July. They were either dormant or had been removed by the time the house was listed for sale in mid-August. The problem had disappeared during the listing period and for the first few months after the close of escrow.

Bamboo sprouts are pointed and sharp enough to impale a person’s foot through a hard-soled shoe. They are especially deadly while short and hidden beneath grass. The shoots grow very fast and need to be cut constantly. This made the entire backyard and pool area virtually unusable. Even the dog couldn’t go out.

Worse yet, the Millers learned that the larger shoots/roots can grow strong enough to eventually break up the house’s foundation, the patio, and the pool. There was no way the home inspector could have seen the problem, especially since the culpable plant was on the neighbor’s side of the fence and not visible on the Millers’ side.

"They (the sellers) HAD to know about this when they sold us the house! I’m sure they didn’t let their little girl out in the yard with this stuff. And he’s an attorney!" said Joe.

We all recalled the seller telling us that he wanted to disclose everything as he pulled up an area rug in the family room to show us a small spot of rippled hardwood underneath.

"What irony," said Terri.

"What can we do now?" asked Joe.

The California Association of Realtors® (CAR) provides a Mediation Clause in its purchase agreement which helps parties mediate problems such as these without having to go to court or to binding arbitration.

Joe consulted a real estate attorney who told him that the seller, as an attorney would probably be held to a higher standard than a lay person when it came to disclosing material facts in a real estate transaction. The attorney helped Joe write a letter to the seller to begin the mediation process.

Fortunately for Joe, during mediation the seller agreed to pay the $20,000 it would cost to remove all the bamboo from the yard, dig a ditch along the offending property line, pour a cement barrier to block future bamboo re-growth, and replace the damaged lawn area. Although Joe and his family had to go through quite a bit of aggravation, their out-of-pocket expenses were minimal since they did not need an attorney to represent them at an arbitration hearing or in court.

Fortunately for the seller, he was not taken to arbitration or court where in addition to the $20,000, he might have had to pay punitive damages for fraud since it was fairly clear that both he and his wife had to have known of the bamboo problem before they listed their home for sale.

Susan Stone has been an Agoura Hills resident since 1982. As a broker assistant with White House Properties, Stone provides real estate and relocation services to and from the San Fernando and Conejo valleys.. She is a graduate of Pomona College, Claremont, CA and earned a Professional Designation in Marketing and Merchandising from U.C.L.A. Reach Susan Stone at (818) 865-0944, ss4re@aol.com or at www.susanstone.com