Is the presence of polybutylene pipes in a property a material fact which must be disclosed to purchasers?

By Miriam J. Baer

Assistant Director of Legal Services

Following a recent study of the issue, the Commission has determined to continue answering "no" to the question of whether the presence of polybutylene pipes in a 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.

Polybutylene ("PB") is a form of 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.

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 fact, 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 not been proven to be certain or nearly certain to occur (unlike synthetic stucco, where the problem was far more pervasive);
• to the extent a defect exists in a particular pipe or fitting, it is often not easily discernible; and
• no other neighboring state has determined the mere presence of PB pipes to be material.

Based upon these facts and other available information, the Commission has determined that the mere presence of PB pipes is not per se material, and need not be disclosed in every case. However, disclosure is required where:

1. a defect in the pipes is known to the licensee, or
2. a defect or probable defect exists about which the licensee should know<(e.g. where 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).

What should you as a real estate licensee do when confronted with a property served by PB pipes? The Real Estate Commission recommends that you 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 you find that the owner (or neighbor) has had a history of problems, or, if you find the owner has an ongoing problem, disclose these facts to the buyer and recommend an inspection. If no problem appears, disclosure is permitted but not required.