Today we announce the release of a six-part series called Rikki’s Story. Episode One introduces you to Rikki, who has just purchased a new condo and discovers an unwanted housewarming gift. For the next five episodes, we follow Rikki through her journey dealing with the toxic legacy of thirdhand smoke.
Rikki Selby was interviewed by Jessica Pugel on September 16, 2020. This summary was written by Jessica Pugel and checked for accuracy by Rikki Selby.
The Dream Home Comes With a Flaw: Thirdhand Smoke
After searching for a year for a place to live in Los Angeles to be closer to my new granddaughter and my doctors, I bought a condo that I thought was my dream home. Instead, I purchased a dangerous and expensive nightmare. Before purchasing, I visited the home multiple times, thoroughly inspecting the physical space and seller disclosure documents. Each time I visited, several fans were on and the doors and windows were wide open. When asked, the seller’s realtor explained they were getting rid of the stale air in the empty home. The realtor acknowledged that there may be toxins in the air given proximity to industrial complexes and freeways, but I didn’t notice any odors at all. The seller was eager to sell, and I was eager to buy. So, I did.
As it turns out, my condo (and soon, my life) was contaminated with thirdhand smoke. On move in day, I turned the key, opened the door, and was hit with an obnoxious, yucky odor. Hoping it would go away, I turned on the fans and opened the windows to air out my condo, then left for the evening. When I returned, the smell was less, so I spent the night in my new home. In the morning, though, I had trouble breathing. The doctor at the urgent care center told me to take some medications, stay out of my new condo, and rest. After a few days my breathing returned to normal, so I went back to my new place and stayed the night. In the morning I had trouble breathing and an uncomfortable full-body rash. Back at the urgent care, the doctor suspected my symptoms were a reaction to thirdhand smoke, something an allergy and lung specialist confirmed. Thirdhand smoke is the tobacco smoke residue that contains many toxic constituents. I realized I needed to remove the thirdhand smoke before I could live in my new condo. The week before I did not even know what thirdhand smoke was, but now it was the center of my attention.
Posted on: October 26, 2020
My First Question: How do I get rid of thirdhand smoke?
At first, I thought this would be a simple process, but I quickly learned that I was wrong. I started with a professional cleaning service. When that did not work, I brought in three contractors, one who specialized in smoke remediation, to ask their advice. Each of them was overwhelmed with the odor, and one reported a severe headache. Each contractor recommended stripping the walls of paint and primer then repainting, but none guaranteed the smell would not return. They did not provide a long-term solution short of demolishing and rebuilding the condo. These recommendations were reinforced by thirdhand smoke specialists, who told me that the only way to get rid of the thirdhand smoke in a heavily polluted home was to remove everything in the unit—not just furniture, drapes, and carpeting, but walls, ceilings, and flooring—and replace it with new materials.
I was so distressed—how could this have happened? Shouldn’t the seller have had to disclose the thirdhand smoke prior to selling the condo? I sorted through the disclosure agreement. The seller had answered “Has tobacco been smoked on the property?” with a “yes” but had not included any explanation, which he had for the other “yes” answers. I recalled thinking at the time that, since there was no explanation and because the condo seemed to be in good condition, an occasional guest had smoked a few cigarettes over the years. I realized that could not have been the case given how much thirdhand smoke contaminated my condo.
Posted on: November 2, 2020
My Next Question: Who is responsible for cleaning up thirdhand smoke?
Finally, after trying to solve this problem on my own for two months, I hired a lawyer in July 2017. I was confident he could get the seller to cancel the sale or pay for remediation. When the seller and his realtor were unwilling to even visit the condo to experience the odor for themselves, much less cancel the sale or pay for remediation, I was ready to go to court.
But I could not go to court. One of the check boxes I marked during the sale was an agreement to settle disputes through an arbitrator. That seemed logical at the time—the realtor explained that there are sometimes technicalities of proof and that arbitration was just a more informal process than court, and that agreeing to settle disputes through an arbitrator speeds up the sale.
So instead of formal court, I learned that my first step had to be mediation hearings and, if those failed, then arbitration. It was no surprise to me that we moved to arbitration. Arbitration hearings include depositions from the people involved and testimony from expert witnesses, like a regular court trial. The seller postponed the formal arbitration hearing several times and, before the hearing was held, he passed away. There were more delays as the probate court determined who would represent the seller’s estate. Eventually, the seller’s daughter was appointed, and a date was set for the arbitration hearing.
Posted on: November 9, 2020
Arbitration Established the Seller Misrepresented and Thirdhand Smoke Damaged My Home
The formal arbitration hearing appeared to support my complaint. In their depositions, the late seller and his realtor each admitted to purposefully hiding the odor, with the late seller including that he “sometimes” smoked inside. Expert witnesses testified about thirdhand smoke, supporting my complaint with research findings consistent with my experience. There seemed to be no argument that the late seller had intentionally failed to disclose the use of tobacco inside the home. I really expected to win the arbitration and I expected the arbitrator to order the late seller’s estate to pay for my costs for the arbitration and for remediation of the condo.
But the arbitrator sided in favor of the seller. The arbitrator thought that covering up the odor for the sake of making the condo smell and look good for selling was accepted practice in real estate transactions and that it had been my responsibility to detect the problem and to have asked the seller for an explanation on the disclosure document. California, however, is not a “buyer beware” state, and the seller is supposed to inform the buyer of anything that may become a potential issue, such as if there are plans to build a freeway close to the unit.
After the decision, I contacted the arbitration company about an appeal, and they responded that my case did not meet the strict and rare circumstances for appeal. I learned the hard way that California arbitration companies enforce California Community Codes and Regulations (CC&Rs), not California real estate laws. Arbitrators must comply with ethical rules set by California, but not necessarily California law. In my case, the arbitrator put responsibility on the buyer rather than the seller.
Posted on: November 16, 2020
Dreams of a Healthy Home Are Dashed
Back in 2017, when this all started, I felt like I had two choices (to have a healthy home): sell and leave the problem for the next buyer, or remove and replace everything. I was unwilling to put the condo back on the market—I didn’t want to pass this terrible experience on to someone else. Instead, I chose to demolish my dream home and rebuild. All that was left was the cement floor, cement ceiling, and a few studs. I even renovated structures shared with my neighbors so the thirdhand smoke would not spread to them.
I realize that I am very fortunate to be able to make the choices I did. Many others would have been forced to simply live in that contaminated home. The financial impact of my choices was significant. Now, three and a half years after buying my dream home, I am still rebuilding. Since I could not live in my contaminated condo, even before the demolition and rebuild began, I have been renting another unit in the same complex while still paying the mortgage on the contaminated unit. I have had to pay the fees and taxes associated with being a homeowner, the permit fees and building costs for rebuilding the condo, and now all the legal fees from the arbitration.
Posted on: November 23, 2020
A Message from the Resource Center: Rikki’s Story Shows That Current Disclosure Policies and Legal Mechanisms Fail to Protect Consumers
Rikki has generously shared her story, in part so that others can learn from her experience. Future home buyers should assertively investigate all “yes” answers on the home disclosure agreement and ask that the owner fill in the missing information directly on the form. The use of fans, air fresheners, and scented candles—commonly used at Open Houses—could cover up an unpleasant odor and signal an underlying problem. Ask to have a second visit when fans are not in use. It is unacceptable to misrepresent the physical condition of a property when the physical condition can cause significant medical, emotional, and financial harm. It is time to hold accountable persons and businesses that willfully withhold information about tobacco use in a living or working space, deliberately ignoring the consequences that toxic tobacco residue may have on future occupants. In this particular case, the legal mechanisms fail to protect California’s home buyers from the toxic thirdhand smoke left behind by sellers who have allowed tobacco smoking on the property. At a minimum, home buyers should be able to expect full disclosure of tobacco use as part of any real estate transaction.
Posted on: November 30, 2020