selling a house as-is in dallas tx with past plumbing leak mold disclosure - does buyer signing waiver protect against lawsuits?

Question

we are selling an inherited 1980s brick home in dallas (lake highlands) completely 'as-is'. two years ago there was a second-floor plumbing leak that caused water damage in the ceiling and drywall, which was fixed by a handyman who replaced the sheetrock.

our listing agent says we must disclose the past leak on the TREC Seller's Disclosure Notice (TX Property Code 5.008), but our buyer is offering cash with an 'as-is' addendum.

if the buyer signs the as-is waiver, does that protect us from being sued for fraud if they find hidden mold behind the walls after closing? how do we get legal safe harbor?

Antonio · Accepted Answer

Direct Answer:  No, an 'as-is' contract clause does NOT protect you from civil fraud lawsuits under Texas Deceptive Trade Practices Act (DTPA) if you fail to disclose known latent mold defects. True legal safe harbor in Texas requires providing a formal Certificate of Mold Damage Remediation (TDI Form MDR-1) signed by a licensed Mold Assessment Consultant. 
 Under Texas Insurance Code Chapter 1952 (Subchapter G) and Texas Property Code Section 5.008, selling 'as-is' only waives implied warranties regarding patent (visible) defects. If a handyman concealed water-damaged framing without certified microbial extraction, dormant  Stachybotrys  spores remain an active latent defect. Texas courts have repeatedly held sellers liable for treble damages when sellers rely on as-is clauses while withholding knowledge of uncertified past water events. 
 To establish complete legal immunity before closing: 
 
    Conduct a Baseline Wall Cavity Air Assessment:  An independent consultant collects cavity air samples to verify spore counts. 
    Remediate Active Cavities Under Containment:  Remove any contaminated framing studs or insulation. 
    Obtain TDI Form MDR-1:  The Texas Department of Insurance Certificate of Mold Damage Remediation creates a statutory presumption that the property is completely clear. 
 
 Contact our Dallas certified team at  (855) 215-6261  to schedule TDI Form MDR-1 testing.

lisa_m_broker · Answer

As a Texas broker, I remind my agents daily: the 'as-is' clause in Paragraph 7D of the TREC 1-4 contract does NOT trump mandatory disclosure. Disclose everything on Section 4 of the disclosure form and attach the contractor invoices.

marcus_title_tx · Answer

From an escrow standpoint, title companies in DFW love seeing the TDI Form MDR-1 attached to the closing packet. It clears title insurability immediately.

eric_n_dfw · Answer

OP Update:  Thank you Antonio & Lisa. We had a specialist test the cavity and there was mild Penicillium. Had them blast and issue the MDR-1 certificate. Buyer happily signed off!

selling a house as-is in dallas tx with past plumbing leak mold disclosure - does buyer signing waiver protect against lawsuits?

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