DISCLOSURE: WHAT SHOULD YOU DO?
February 1, 2017 | Richard Sites
To Disclose or Not to Disclose, That is Not the Question
Disclosure, whether by an owner or a real estate agent, is an interesting thing. Disclosure also brings the concept of “intent” into the picture.
Let’s take a look at the two types of disclosure and their effect.
All real estate law makes it clear that anyone involved in the real estate transaction must reveal any material facts that could have an effect on the sale.
Most real estate offices use a Seller’s Disclosure form. This is several pages of questions designed to give buyers an adequate amount of material information about the condition of the house.
Seller’s Disclosures questions cover things like the plumbing, wiring, flooding,the pool, etc.
The intent is for the seller to disclose any material facts that a buyer should know before making a purchasing decision. However, this form is NOT required by law.
What is required is that sellers disclose any material facts and the Seller’s Disclosure is the easiest way to do this.
Real Estate Agent Disclosure
Just as sellers must disclose material facts, real estate agents are also held to this standard. However, since the agent does not live in the house, the law says the agent must disclose any material facts that are readily visible or apparent.
So, if the agent knows the roof is leaking but in an out of the way spot that could be overlooked by a buyer, the agent must make this known.
A hypothetical question that comes up in any disclosure discussion is this: What about something like a murder that took place in the house in the past? Things like this do not need to be disclosed since they are not material facts about the property.
However, something like a pending change to zoning or a proposed development nearby that could affect the quality of life or property value must be disclosed IF the agent knows about it.
And here’s the rub: If the agent knows about it.
Disclosure vs. Intent to Conceal
What happens when buyers feel like all the material facts were not disclosed? The only recourse after a transaction closes is to sue.
Anyone can sue for anything by simply paying the cost of filing the suit. The merits of the suit will be determined by the court.
This is where intent comes into the picture. Was the seller or the agent intending to conceal a material fact or was it not known?
Here’s an example. Buyer takes possession of a new home only to discover that the neighbor has some annoying lifestyle issues that, while complying with the law, bother the new residents. Let’s call them the “bad neighbors”.
Should the seller or agent have known and disclosed there were “bad neighbors”? This is where courts have to make the decision.
Maybe the past owners were not bothered by the neighbors.
Maybe the real estate agent never noticed the “bad neighbors”.
Only a court can decide for sure.
Now, filing suit is expensive and time consuming and something that should be avoided if possible.
The Take Away
You can never go wrong by making a full disclosure. You may lose a sale, but you will not wind up in court.
As for the “bad neighbor” situation, little can be done when somebody needs a scapegoat for their issue. Sometimes things just go wrong. Trial attorneys would like you to believe that somebody else it to blame for everything that befalls you. In the case of negligence, this might be the case but not when things simply don’t turn out as you plan.
If you are selling, disclose everything to your agent and all buyers and you can’t go wrong.
If you would like to have a conversation about getting your home sold, contact me directly at 561.762.4073.