Sellers need to Disclose all Material Facts:
Seller Disclosures are documents provided by a home seller to a home-buyer that outlines known issues with a property and other material facts that could or would affect the buyer's decision to purchase or could ultimately affect the original purchase price that the buyer has offered. Simply remember that the seller is most always obligated to disclose known problems that could affect the property's value or desirability.
In general, sellers should disclose any known facts about the physical condition of the property, existence of any dangerous materials, dangerous conditions, any lawsuits or pending matters, inspection reports, or any other factors that may influence a buyer’s decision.
FYI… it is illegal for a seller to fraudulently conceal major physical defects of the property. It is fully understood that some sellers may feel hesitant to reveal any minor or major problems with their home – this simply because the seller is afraid they’ll scare off buyers. But here’s a warning to sellers… purposely concealing issues may land the seller in legal trouble if they fail to disclose all known material facts. Potential for litigation also includes non-disclosed issues that have been previously and/or recently repaired.
I always say, “It is much better to lose a buyer by clearly disclosing all known issues than it is to spend years and tens of thousands of dollars in legal litigation”. In other words, sellers should err on the side of caution. If you know it, “put it on paper” (ie: disclose it). This is a smart move because it saves everyone time, hassle and any expense if a non-disclosed issue is in fact the reason why a deal falls apart while in Escrow. Again, if the seller tries to hide something it can come back to haunt them in the form of an expensive lawsuit.
Err on the side of disclosure.
If you have even the faintest question about whether or not to disclose something to potential buyers, avoid the potential for liability and just tell it all.
“Full disclosure” of any property defects and current-or-past issues will in fact increase the buyer's confidence that you, the seller, are dealing openly and fairly with the people/buyers who want to purchase your home.
When does the buyer receive disclosure statements?
Disclosure documents are provided to buyers within days after the seller has accepted their purchase offer.
What do sellers disclose to potential buyers?
For example: Previous improvements, renovations or upgrades done by sellers are typical disclosures, as well as any work/repairs/improvements that were done with or without permits.
Other items of standard disclosures include the existence of pets on property, roof leaks (current or past), any termite issues, any neighborhood nuisances, any history of property line disputes, zoning changes and whether there any defects or malfunctions with major systems (ie: such as Furnace or A/C) or any issues with appliances… You get the idea so far?
Disclosure documents also ask sellers if they are involved in bankruptcy proceedings or if there are any liens on the property.
California's Stringent Disclosure Requirements:
California sellers must also disclose potential hazards from floods, earthquakes, fires, environmental hazards, noise pollution, air pollution and other problems - this done via a Natural Hazard Disclosure Statement.
California sellers must also alert buyers to the availability of a database called “Megan’s Law” which is maintained by law enforcement authorities on the location/residence of registered sex offenders.
Disclose lead-based paint and hazards (federal law). If you are selling a house built before 1978, you must comply with a federal law called the Residential Lead-Based Paint Hazard Reduction Act of 1992 (U.S. Code § 4852d).
You must: Disclose all known lead-based paint and hazards in the house
⇒ give buyers a pamphlet prepared by the U.S. Environmental Protection Agency (EPA) called Protect Your Family from Lead in Your Home
⇒ include certain warning language in the contract as well as signed statements from all parties verifying that all requirements were completed
⇒ keep signed acknowledgements for three years as proof of compliance.
⇒ give buyers an opportunity to test the house for lead (this of course if buyer chooses to do so and this to be done during the negotiated contingency period).
In addition, make sure to disclose any known "asbestos" on your property. If not disclosed and known to the seller, the presence of asbestos can lead to the fact that you (the seller) could be sued by the buyer for damages suffered - such as lung damage and other health related problems caused by inhaling asbestos fibers.
Up until about 1975, houses being built often contain asbestos-insulation around heating systems, in ceilings, and in many other areas. A little known fact is that up until about 1981, asbestos was still continued to be used in many other building materials such as vinyl floors and tile.
Is a disclosure the same as an inspection?
A seller disclosure of any kind is not the same thing as an independent physical inspection performed by a 3rd party.
Closing notes…. Follow the Golden Rule, "Disclose-Disclose-Disclose"....if you (seller) were the buyer, I'll bet you would like to know about all issues in regards to the house/property. Therefore your buyer will want to know about all issues as well.
Typically: Buyers are not upset by receipt/disclosure of negative information, they get upset and call a lawyer when they feel they have been duped, deceived or lied to.
If you are thinking of selling your house, it would be my pleasure to consult you in regards to Disclosures and guide/consult you through the entire SALE process.
Oscar Castillo : Broker Associate
- Residential Brokerage