When selling a home, owners have an obligation to disclose certain facts and information about their home. Most states require sellers to complete a written property disclosure form. Most forms consist of questions about the home and property.
In most states, sellers are required to either complete this form when they list their home or give sellers a credit. Usually, questions require a response of yes, no, or unknown. Questions address material facts, major defects, federal disclosures, and special disclosures. Some other areas are considered borderline or in the gray area. The forms, requirements, what’s included, and other conditions all vary by state.
Materials facts include condition, age, known problems, any defects. In essence, they are basically those things that would influence a buyer’s decision to purchase the home or not, as well as the price and terms they offer. Again, specifics vary by state, in terms of what’s included. These disclosures ask about known defects. They are things that owners know exist or that they should know because they are reasonably apparent.
Major defects are obviously much easier to determine. If your home floods, that must be disclosed. If you know your home’s electrical system is not up to code, this must be disclosed.
Repairs you have completed, as well as improvements and upgrades, should be noted as well. Elizabeth Weintraub, Home Buying/Selling Expert, makes an excellent point in her article, Home Disclosures, and Material Facts. She states that she would not use the term “repair” because that implies the issue was fixed. She recommends just explaining briefly what happened, how you addressed it (either yourself or a professional), and whether or not you’ve had any problems since that time.
Federal disclosures are those required by federal law. One that many of us are familiar with is Lead Disclosure. This addresses lead-based paint hazards and applies to homes built before 1978.
Special disclosures might be required in certain states, or areas within a state. Sometimes this is part of the residential disclosure form and other times it is a separate document. It addresses conditions in the area that could affect the home or property. Common examples include a home located in a flood zone, on a fault line, or along an airline flight path.
It is also very important to remember that owners must fill out this form. No exceptions. An agent is not allowed to do this for the seller unless the agent is, in fact, the one actually selling the home.
Then there are the gray areas, those that don’t have clear-cut laws and requirements. Most tend to vary by state. Some states require sellers to disclose whether death or murder occurred in the home. Others require notification to buyers if the home has a reputation for being haunted.
The option to choose “Not Known” should be used if you really don’t know any information about the condition. This could apply to many situations. Buyers may not have lived in the home very long. The home might be an estate sale and is being sold by family members who do not know much about the home.
This option is also common in foreclosures, which can be a tricky situation. Banks have not lived in the home, so they are not aware of much of the information. In addition, foreclosures are often not in the best condition, either from revengeful owners or vandalism. In these cases, no disclosure would be able to reveal the potential damage that could result from these situations. In these cases — and I believe in all sales — it is critical to have the home inspected.
There are certain things that sellers are not required to disclose. For example, they don’t have to tell you why they are moving or if they enjoyed living in the home.
You can get more information from your agent or by contacting your state. If there is no requirement for certain information and you’re debating whether or not to disclose it, ask yourself how you would feel if you were in that situation. If I was buying a home, would I want the seller to disclose this information? In other cases, a good rule of thumb is when in doubt, disclose the information.
A final point to mention is that many agents are advising sellers to offer the credit instead of completing the disclosure. They feel it is just too risky for a seller to sign such a statement that could lead to repercussions later on if problems are discovered by the new owners (buyers). This is a decision you should make after consulting with your realtor and your attorney.