THEREFORE, THE SCHOOL DISTRICT IS NOT NECESSARILY REQUIRED TO REMOVE OR ABATE THE ASBESTOS PRIOR TO THE SALE, BUT IT MUST TAKE APPROPRIATE ACTION TO MANAGE ITS ASBESTOS PROBLEM. THE RESPONSE TO THIS QUESTIONS TURNS ON THE HAZARDOUSNESS OF THE ASBESTOS AND DETERMINATION OF HAT RESPONSE 6 APPROPRIATE.
QUESTION 2. IF THE ANSWER TO QUESTION NO. 1 IS IN THE NEGATIVE AND THE DISTRICT IS NOT REQUIRED TO ABATE THE ASBESTOS PRIOR TO SALE, IS THE SCHOOL DISTRICT REQUIRED TO DISCLOSE TO A PURCHASER OF THE BUILDING THE FACT THAT THE BUILDING CONTAINS ASBESTOS?
ANSWER. GENERALLY, SELLERS ARE NOT LIABLE FOR INJURIES CAUSED TO THE BUYER OR OTHERS BY ANY DANGEROUS CONDITION ON THE PREMISES WHICH EXISTED AT THE TIME THE BUYER TOOK POSSESSION. HOWEVER, THERE ARE SOME EXCEPTIONS TO THIS RULE WHICH AY REQUIRE A SCHOOL DISTRICT TO MA E SUCH A DISCLOSURE. A SELLER MAY HAVE A DUTY TO DISCLOSE A DANGEROUSLY DEFECTIVE CONDITION. SECTION 353 OF THE RESTATEMENT OF TORTS 2D STATES:
(1) A VENDOR (SELLER) OF LAND WHO CONCEALS OR FAILS TO DISCLOSE TO HIS VENDEE (BUYER) ANY CONDITION, WHETHER NATURAL OR ARTIFICIAL, WHICH INVOLVES UNREASONABLE RISK TO PERSONS ON THE LAND, IS SUBJECT TO LIABILITY TO THE VENDEE AND OTHERS UPON THE LAND WITH THE CONSENT OF THE VENDEE OR HIS SUBVENDEE FOR PHYSICAL HARM CAUSED BY THE CONDITION AFTER THE VENDEE HAS TAKEN POSSESSION, IF
(A) THE VENDEE DOES NOT KNOW OR HAVE REASON TO KNOW OF THE CONDITION OR THE RISK INVOLVED, AND
(B) THE VENDOR KNOWS OR HAS REASON TO KNOW OF THE CONDITION, AND REALIZES OR-SHOULD REALIZE THE RISK INVOLVED, AND HAS REASON TO BELIEVE THAT THE VENDEE WILL NOT DISCOVER THE CONDITION OR REALIZE THE RISK.
(2) IF THE VENDOR ACTIVELY CONCEALS THE CONDITION, THE LIABILITY STATED IN SUBSECTION (1) CONTINUES UNTIL THE VENDEE DISCOVERS IT AND HAS REASONABLE OPPORTUNITY TO TAKE EFFECTIVE PRECAUTIONS AGAINST IT. OTHERWISE THE LIABILITY CONTINUES ONLY UNTIL THE VENDEE HAS HAD REASONABLE OPPORTUNITY TO DISCOVER THE CONDITION AND TO TAKE SUCH PRECAUTIONS.
VARIOUS FACT QUESTIONS RAISED BY SECTION 353 WOULD NEED TO BE RESOLVED BEFORE A DETERMINATION OF WHETHER THE SCHOOL DISTRICT HAD A DUTY TO DISCLOSE THE PRESENCE OF ASBESTOS COULD BE MADE. THOSE FACT QUESTIONS INCLUDE: WHETHER THE ASBESTOS IS DAMAGED TO THE EXTENT THAT IT CREATES AN UNREASONABLE RISK TO PERSONS IN THE BUILDING; DOES THE BUYER KNOW OR HAVE REASON TO KNOW OF THE PRESENCE OF ASBESTOS AND THE EXTENT OF THE RISK IT PRESENTS; WHETHER THE SELLER HAS REASON TO BELIEVE THAT THE BUYER WILL NOT DISCOVER THE ASBESTOS OR REALIZE THE RISK INVOLVED AND WHETHER THE SELLER ACTIVELY CONCEALS THE PRESENCE OF ASBESTOS.
QUESTION 3. IF THE ANSWER TO QUESTION NO. 2 IS IN THE POSITIVE AND A SCHOOL DISTRICT IS REQUIRED TO DISCLOSE THE ASBESTOS TO A PURCHASER, WHAT, IF ANY, ARE THE CONSEQUENCES AND LIABILITIES OF A SCHOOL DISTRICT WHICH FAILS TO MAKE THE REQUIRED DISCLOSURE?
ANSWER. ASSUMING THAT THE FACTUAL CIRCUMSTANCES ARE SUCH THAT THE SCHOOL