A couple who purchased a condo in a building that turned out to be contaminated with toxic chemicals can recover only 65% of their losses, because they could have arranged an environmental inspection of the property before they bought it but didn’t do so, a Court of Appeals recently decided.

The couple bought a condo unit in a converted factory. The developer had installed a vapor barrier, but never actually decontaminated the dangerous chemicals on the site.

The buyers claimed that the seller’s real estate agents assured them the site was safe. It appears the agents believed that was true at the time, but when they later found out that the site still had problems, they didn’t say anything.

According to the court, the agents could still be liable, because even though they didn’t technically lie, they had a legal obligation to tell the buyers about the problems once they knew about them.

A couple who claimed they were misled about a property can’t recover all their losses, because they could have discovered the problems by hiring an inspector.

On the other hand, the court said the buyers were partly at fault because they never obtained an environmental inspection. The buyers merely relied on the agents’ statements, along with a local newspaper article and public “buzz” suggesting that the factory had been cleaned up.

A jury found that the agents were 65% at fault and the buyers were 35% at fault, and the court said this was correct – so the buyers can recover only 65% of what they lost.