When you are selling a property there are certain disclosures mandated by state and federal law. Do you know them? Are there other disclosures that are recommended, even if not required?
This article will address those issues.
Federal law requires disclosure of lead-based paint hazards on any property built before 1978. This is generally done on an EPA-approved form, combined with giving the buyer a copy of the pamphlet, “Protect Your Family from Lead in Your Home”, available from the EPA’s website. The law requires that you give your buyers a ten-day opportunity to test the house for lead.
Every state has different required disclosures, so it is best to research your own state’s law. A good place to start is www.findlaw.com. Common disclosures include radon, mold, asbestos, meth labs, whether the property is in a flood zone, and other health and safety issues. States like California require disclosure of “seismic hazards”. Colorado requires disclosure of the source of water. Some states require disclosure of the existence of child predators in the area (“Megan’s Law). The bottom line – learn your state’s disclosure requirements.
Typically your real estate broker will ask you to fill out a 4 page property disclosure form to give to the buyer. In most states this is not a mandatory disclosure but rather a disclosure that the buyer demands in the purchase contract. I would recommend you fill this out either way, answering as truthfully as possible.
Common Law Disclosures
The common law rule is that you are required to disclose any known, “latent” defects. That is, you must disclose anything that you know about that is not easily discoverable by a visual inspection of the property. For example, if you opened up a wall to fix a mold problem and then sealed it up with new drywall, there’s no way for the buyer to know this. Such an issue should be disclosed to your buyer.
Sellers commonly mistake the “as-is” clause in the contract as a substitute for full disclosure. It is not. Even if you are selling the property “as-is”, you need to comply with state, federal, and common law disclosures. Failure to do so could result in a lawsuit for monetary damages or rescission of the contract.
The bottom line is that disclosure is the name of the game. When in doubt, tell the truth, tell what you know or have reason to know. It avoids many problems down the line.
Attorney William ("Bill") Bronchick, host of Legalwiz.com, has authored six best-selling books and is sought nationwide for his 25+ years of real estate and legal knowledge. He has been interviewed by numerous media outlets, such as CNBC, TIME Magazine, USA Today, Investor Business Daily, Forbes, and the LA Times, to name a few. William Bronchick is the co-founder and past President of the Colorado Association of Real Estate Investors and the Executive Director and founder of the College of American Real Estate Investors. Click on the "About" link above for more information on William Bronchick.