Polybutylene Pipes: Material fact or not a material fact?
Written By:
Bill Gallagher, President
Superior School of Real Estate
www.ssore.com
Is the presence of polybutylene pipes in a property a material fact which must be disclosed to purchasers?
In a recent study of this issue, the North Carolina Real Estate Commission has determined to continue answering ”no“ to the question of whether the presence of polybutylene pipes in property is a material fact which must be disclosed, unless there is some indication that the particular pipes involved have failed or are likely to fail in the future.
BACKGROUND
Polybutylene (”PB“) is a form a plastic resin that was used in the manufacture of water supply piping beginning in the late 1970s and continuing until about 1995. For many years, it was a popular substitute for copper piping and was used in both exterior and interior water supply distribution systems.
PB piping is a flexible, easy-to-cut plastic, often gray in color that is put together with simple crimp connectors, or ”fittings.“ Two types of ”fittings“ – insert and noninsert – were used to connect PB pipes.
MATERIALITY
Over time, some homeowners have complained of leaks in PB pipes, particularly at the joint where the PB pipe meets an insert fitting. Some of these leaks have caused a significant amount of damage that has been costly to repair. In November 1995, a Tennessee class action lawsuit concerning PB pipes was settled for a substantial dollar figure.
However, in studying the issue, it also appears that:
- not all PB pipes and insert fittings have been found to fail
- the likelihood of failure has been been proven to be certain or nearly certain to occur (unlike synthetic stucco, where the problem was far more pervasive)
- to the extent that a defect exists in a particular pipe or fitting, it is often not easily discernible
- no other neighboring state has determine the mere presence of PB pipes to be material.
Based upon these facts and other available information, the NC Real Estate Commission has determined that the mere presence of PB pipes is not per se material, and need not be disclosed in every case. However,
- a defect in the pipes is known to the licensee, or
- a defect or probable defect exists about which the licensee should know (for example, that the licensee is aware that the pipes in the subject property have a history of failure and have not been replaced, or where the licensee is aware that the pipes in a number of other units in adjacent condos or townhouses have failed already.)
CONCLUSION
How should a NC real estate licensee respond to the public when confronted with a property served by PB pipes? The NC Real Estate Commission recommends that the licensee inquire as to any past leaks or other problems with the pipes in the property (and in neighboring properties if in a condominium, townhouse or similar project). If the licensee finds that the owner (or neighbor) has had a history of problems, or, if the owner has an ongoing problem, disclosure of these facts is required to the buyer and the licensee is recommended to have the buyer to obtain an inspection of the property by a qualified home inspector. If no problem appears, disclosure is permitted but not required.
FOR MORE INFORMATION
To obtain more information, please call the Consumer Plumbing Recovery Center at 1-800-392-7591. Also, view www.pbpipe.com.
