Disclosure Laws

Most states require a home seller to provide the buyer with some type of disclosure form. What might the seller have to disclose?

A Residential Property Disclosure Form requires the home seller to disclose facts about the home’s heating, wiring or plumbing systems, including any defects that may exist, such as leaks in the roof or cracks in the foundation. If something in your home is not working properly or needs repair, you will need to either fix it or disclose the material defect to the prospective buyer. There are other disclosure forms, unique to each local area, that require sellers to disclose negative environmental factors or local building code issues. A lead-based paint disclosure form is required for homes built prior to 1978.

State legislatures and courts all over the country have passed laws regarding concealing defects from an agent or buyer. Ask your real estate agent about your obligations as a seller regarding disclosure.

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Putting your home on the market is a major decision that carries a high stress factor. Sellers sometimes become emotionally overwhelmed from the pressure and make expensive mistakes. Here are some pitfalls to avoid when selling your home.

Don’t fail to disclose defects in the property. Disclosure laws require you to reveal information about the home systems, including environmental issues, structural problems, homeowner’s association rules and restrictions on use of the property. Many buyers will require an inspection of your property prior to finalizing the sale, and problems you may hope to hide will tend to come to light.

Don’t make last-minute home improvements that may not add value. Remodeling takes time, will prolong the work of getting your home ready to show, and won’t necessarily please buyers. Don’t price your home too high. Your asking price should be within range of comparable homes in the area that have recently sold. And finally, don’t try to sell your home without the help of an experienced real estate agent!

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Many states require the seller of a home to fill out a real estate disclosure statement when transferring the title. The disclosure is designed to reveal any material defects in the home to the new owner. When buying a home, take the time to read the fine print of the disclosure form.

Look for a section that asks the seller to indicate the material defects that exist in the home’s major systems. Most forms will specify interior and exterior walls, ceilings, roof, insulation, windows, fences, driveway, sidewalks, floors, doors, foundation, and the electrical and plumbing systems. As the buyer you will want to know of defects in any of these areas.

Sellers are required to note the presence of environmental hazards or zoning violations. They must disclose if there are any encroachments or easements, or walls or fences shared with adjoining landowners. Room additions or repairs made without the necessary permits or not in compliance with building codes must be noted. Sellers must disclose citations or lawsuits against the property. If any such conditions appear on the disclosure form, consult with your real estate agent immediately regarding how to proceed with negotiation.

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Every house has some “quirks”, and some have material defects that may affect the sales agreement or the asking price. Placing a less-than-perfect house on the market is fine as long as you and your real estate agent give the buyers information on any “hidden defects”.

Most litigation in real estate transactions involves the buyer suing the seller for failure to disclose a problem. Whether it is a leaky roof, dry rot, plumbing or heating problems, or a wet basement, most courts do not apply the “let the buyer beware” rule to real estate transactions. Even if the buyers had a structural inspection and you sold the property “as is,” you may be held responsible for undisclosed defects.

Sellers have an obligation to disclose both obvious and hidden defects. Courts have not been sympathetic to sellers who have lived in a house and are in a position to know what works and what doesn’t, but do not fully reveal the facts. This is one area where honesty is the only policy. Ask your agent for help if you are unclear about any aspects of the disclosure form.

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Many real estate listings come from individuals who thought they had sold their homes. Sellers who try to sell their own home learn the hard way that selling a home is not easy. Keeping it sold and getting to the closing table is even more difficult. What are the pitfalls involved in selling your own home?

Face-to-face negotiations can be difficult, even when the buyer really wants the house. Then there is the paperwork. Standard contract forms rarely cover all of the local requirements regarding disclosure laws. Such contracts may provide loopholes which could allow a buyer with cold feet to back out at the last minute.

When you have finally come to an agreement, how can you be sure that your buyers will engage competent professionals to handle their loan and complete the closing? What if structural problems are discovered or property boundary problems are revealed? The experience and expertise of a professional real estate agent is your greatest asset in concluding a successful transaction.

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Before the professional inspects the home that you are buying, you will be asked to sign an acknowledgment of the scope of the inspection. This document will probably include a disclaimer clause designed to relieve the company of responsibility if they should miss a defect. What happens if a defect is missed during an inspection?

The disclaimer clause may get the inspection company off the hook for a defect if there is no visual indication of a problem. If the inspector clearly indicated that he was not checking for that problem–many inspectors do not check for dry rot or inspect roofs–then the recourse will be limited. If negligence is involved, or if the defect should have been obvious to a professional inspector, the disclaimer is not likely to protect the inspector. If you find an undiscovered defect, discuss the matter with the inspector. Depending on the situation, the responsibility for remedying the problem may rest with you, the sellers, and/or the inspector.

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Disclosure laws make it important to reveal all material defects when you are selling a home. It is important to be absolutely candid with your agent and all buyers about the condition of the property. If there is anything wrong with the roof, the plumbing, the wiring or structure, it will probably not remain a “sleeping dog”. The problem will probably wake up, snarl, growl and snap at your ankles at the precise moment your buyers feel their first stirring of buyers’ remorse.

It is unlikely that defects will go undetected, because most buyers get a home inspection before they are contractually obliged to complete the purchase. Even if the problems do not surface before the closing, your liability does not end after the closing for any defects you may have forgotten to report. Buyers almost never accept misrepresentation graciously, but they can usually deal with a house that is short of perfection if they know what they are getting into from the beginning. When selling your home, your real estate agent will provide you with a seller’s disclosure form. Protect yourself by clearly describing any material defects prior to the sale.

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Unforeseen problems can arise during escrow, and closing dates are never set in stone! Lenders, appraisers, title attorneys, credit check services, or anyone who is involved in the transaction could potentially delay a closing. Stay in close touch with your real estate agent, who will notify you of deadlines and help you deal with delays.

Well-written sales contracts are the key to avoiding problems during escrow. For example, provisions can be included in the agreement that require the buyer to provide evidence of sufficient funds for down payment and closing costs, or to present proof of the ability to obtain homeowner’s insurance. Because of new restrictions on insurance policies, the mortgage lender may require insurance before funding the loan.

There is also a section in the sales contract wherein the seller makes a warranty to the buyer of the condition of the property. It is important to make sure that this clause is modified to reflect the seller’s transfer disclosure statement. If this is not done, the seller could be required to repair items that are found to be dysfunctional or faulty, and this could add time to the escrow period.

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