When selling a house, there are requirements upon the seller to disclose various defects of a home or encumbrances upon the property. If a seller fails to provide these disclosures, he may be held liable for the defects, and the sale could be rescinded. The degree of disclosure a seller must provide to a buyer of real estate depends upon the jurisdiction in which the property is located.

While some states require a state-mandated disclosure form be used, others do not. It is recommended that at a minimum the disclosures be made in writing and that the buyer signs and acknowledges the disclosures.

 

Items Typically Disclosed

Federal law requires sellers in all states to disclose whether lead-based paint was used in homes constructed before 1978. The disclosure allows the seller ten days to inspect the home for lead-based paint, unless the time is waived in writing.

Material Facts

Sellers usually have a duty to disclose material facts, or anything that would affect a property’s value or the buyer’s desire to purchase the property. If a seller has knowledge about a defect, to avoid liability, the seller should disclose this defect to the buyer. A seller need only disclose those facts about which he has personal knowledge. Some states require that a seller identify certain items and the potential for defect whether or not these defects are apparent. While a seller does not have to hire a home inspector in order to make these disclosures, some sellers do simply so they can repair or fully disclose the home’s defects.

Home Systems and Condition of Home

Disclosures often include information about condition of the home’s systems, such as electrical, plumbing, heating and/or air conditioning, sewer and septic. Disclosures also include information about the home’s roof, foundation, basement, garage, chimney, water supply, pest infestations and whether there is a maintenance agreement affect the roads or streets adjoining the home.

A seller should disclose that he has replaced a roof, upgraded electrical and plumbing, systems, or bolted the foundation. The word “repair’ does not necessarily have to be used.

Death and Causes of Death

In California and some other states a seller must disclose whether a death has occurred in a home three years prior to the sale. Some states prohibit disclosure of a death if it is AIDS related due to potential discrimination issues.
Disclosure of External Items that Affect the Property

A seller should disclose items that could affect the property such as: earthquakes, zoning changes, natural hazards, fire hazards, flood zones, noise pollution, water pollution, ground pollution, and air pollution.

Miscellaneous Disclosures

A new trend is the disclosure that a home has been the former site of a methamphetamine lab. This has become an important disclosure because methamphetamine labs can leave toxic residues behind. Some states require a seller disclose if mold has been present or remediated in the home. As well, some state laws require sellers to disclose the five year history regarding home insurance as some buyers have difficulty obtaining home insurance.

Conclusion

When selling a home, a seller should check with the local and state requirements regarding what items a seller must disclose to a buyer. A seller may disclose issues regarding the home’s structural condition, the home’s systems, whether a death has occurred in the home, and the present of toxic substances such as lead-based paint, mold, or methamphetamine residue.