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Matt Weaver shares 5 points to consider that can save you lots of time and money.

It’s standard practice in real estate to give a home a fresh coat of paint before putting it on the market. Nine out of 10 times, the intention is to show the property at its best. But every so often, the seller paints the house in hopes of covering something up.

That’s why I always triple-check the disclosure documents of newly painted houses, to ensure there were no recent leaks or other damage. It’s the seller’s obligation to disclose these kinds of issues. And it’s the buyer’s responsibility to be completely aware of past problems before signing on the dotted line.

Whether you’re a buyer or a seller, here are five things you should know about real estate disclosures.

1. What is a disclosure?

Disclosure statements, which can come in a variety of forms, are the buyer’s opportunity to learn as much as they can about the property and the seller’s experience in it.

Potential seller disclosures range from knowledge of leaky windows to loud neighbors to information about a major construction or development project nearby. Not only do disclosure documents serve to inform buyers, they can protect the sellers from future legal action. It is the seller’s chance to lay out anything that can negatively affect the value, usefulness or enjoyment of the property.

Leaking windows — bad coincidence?

I once had a buyer call me after the first rainstorm of the season. The windows in the master bedroom were leaking. We checked back on the disclosure documents from the sale and there wasn’t any mention of the leaks. Nothing showed up in the property inspection report at the time of escrow, either.

Unfortunately for the buyers, I said, this is part of homeownership. This could be the result of something that was building over time. I thought that was the end of it. The same client called back a few weeks later. They had workers out to check on the siding. That prompted their neighbor to inquire what they were up to. According to the neighbor, the previous owner of my client’s property had the same siding issues and had discussed it with the neighbor.

Given this new information, it was clear the previous seller had not properly disclosed. I had the buyers do more investigation, get bids and understand what the issue was. Armed with the knowledge of the neighbor and the approximate costs, we went back to the seller, through his agent. Though it did not turn into a lawsuit, the seller took responsibility and the situation was resolved quickly and fairly.

But too often, the lack of proper disclosure can result in a lawsuit. I heard of a story in which a buyer bought a house, with the seller disclosing that a kitchen renovation was done without permits. A few years later, that buyer went to sell the property but didn’t disclose that the previous owner had renovated the kitchen without a permit. The new buyer wanted to do some electrical work with a permit. The city inspector discovered that some things had not been done to code. The inspector dug deeper and realized that much of the kitchen renovation (both plumbing and electrical) was not to code. The new buyer was on the hook for ripping out the kitchen and doing it over. A lawsuit arose between the current owner and the second seller for not disclosing. The original sellers had covered themselves, but the second seller had not.

2. How does a seller go about making a disclosure to the buyer?

Disclosure laws vary from state to state, even down to the city and county level. California has some of the most stringent disclosure requirements. Often, sellers there are required to complete or sign off on over 50 pages of documents, such as a Natural Hazards Disclosure Statement, Lead Based Paint Disclosure, Advisories about Market Conditions and even Megan’s Law Disclosures.

Depending on where you live, sellers can be on the hook for what they disclose (or fail to) for up to ten years. I’ve seen agents and sellers take all types of approaches when dealing with property disclosures. More than anything, I always tell sellers to err on the side of caution. If you know it, disclose it. If you try to hide something, it can come back to bite you long after the sale and it is just not worth it.

Disclosure typically comes in the form of boilerplate documents (put together by the local or state Realtor association), where the seller is responsible for answering a series of yes/no questions detailing their home and their experience there.

Aside from the boilerplate documents a seller is required to complete, if there is any written (or sometimes verbal) communication regarding something negative about the property, it should be disclosed to the buyer. For example, there was a property for sale with a dispute over a tree on the property line and whose responsibility it was. The neighbor faxed a letter to the seller’s real estate agent documenting the dispute. This immediately became a disclosure item that both the seller and buyer needed to sign off on.

Bottom line: Disclosure statements are legal documents that can stand up in court.

3. What do sellers typically disclose to potential buyers?

The work and upgrades sellers have done to their property are a common disclosure, whether the work was done with or without permits. If done with permits, buyers are advised to cross check the seller’s disclosure with the city building permit report. Doing work without the city signing off with a permit is a key disclosure. If the work was not approved by the city, it may not have been performed to code and may cause a fire or health hazard. Buyers should independently investigate any non-permit work that was done.

Other common disclosures include the existence of pets, termite problems, neighborhood nuisances, any history of property line disputes, and defects or malfunctions with major systems or appliances. Disclosure documents often ask sellers if they are involved in bankruptcy proceedings, if there any liens on the property, and so on. Failure to disclose can result in a messy conflict with the buyer after the sale.

Some disclosure documents are very detailed. For instance, among the questions posed by the San Francisco Association of Realtors disclosure statement are:

  • Is there any non-tempered glass on shower or sliding doors?
  • Have there been any unusual odor problems in the neighborhood?
  • Was there any death on the property in the last three years?

4. Is a disclosure the same as an inspection? Are the two related?

A disclosure is something given to the buyer by the seller documenting their knowledge of the property. It is not the same thing as an inspection; because there are things the seller may not be aware of that an inspection brings to light.

This is why a property inspection should always be done by the buyer while in escrow. The inspector will check the property out from top to bottom, many times verifying what the seller has disclosed but sometimes bringing to light new issues. Often, we will see sellers hire a property inspector beforegoing on the market. It seems backwards, but this is the sellers’ opportunity to hire an independent party to inspect the property, in case they missed or were not aware of something.

5. When does the buyer typically receive a seller’s disclosure statements?

In most markets, disclosure documents are provided to buyers once the seller has accepted their offer. In addition to their inspections or loan contingency, the buyer has an opportunity to review the seller’s disclosures. If the buyer discovers something negative about the property through disclosure, he can usually back out of the offer without losing his escrow deposit.

In some markets, sellers provide these disclosures to the buyers even before they receive an offer. Some sellers prefer to have buyers know everything they need to know up front. This is also smart because it saves everyone time, hassle and expense by preventing deals from falling apart once they’re in escrow.

Buyers are required to sign off on disclosure documents and reports. So it’s important to review them carefully and ask questions if you need to.

Full Disclosure Up Front is the Way to Go

In some ways, providing full disclosure can actually help a seller. As a Realtor reviewing disclosures with potential buyers, I like to see a comprehensive set of disclosure documents. It shows that the seller is thorough and upfront. This goes a long way toward giving buyers peace of mind, and in this market, anything you can do to move buyers off the dime is worth considering.

 In Kentucky:

In Kentucky, certain sellers of real estate are required to complete a Seller Disclosure of Property Condition form and to provide that form to potential buyers. The form is required by law through Kentucky Revised Statutes 324.360, and it can be found online through the Kentucky Real Estate Commission’s website.

If you are considering selling a property, make sure that you understand your legal obligations as a seller. If you are considering buying a property, make certain that you are familiar with seller disclosure requirements so that you can perform your due diligence.

This form is designed to protect both buyers and sellers by disclosing all known conditions that may affect the property in question. It protects the seller if they complete it honestly and accurately by making the buyer aware of all known defects. Sellers sometimes question how disclosing issues with the property can help them, and the most obvious answer is that it prevents accusations of fraud from arising in the future. The seller has placed the buyer on notice regarding the condition of the property and the buyer then has the responsibility to decide how they wish to proceed with the transaction.

Seller Disclosure Forms Protect Buyers and Sellers.

The Seller Disclosure form protects the property buyer by being one of the important components of due diligence. Assuming that the seller completed the form accurately and honestly, the buyer can use this information to make important decisions about the property. It may affect negotiations and the price the buyer would ultimately agree to pay, and it will serve as a basis for inspections during the inspection phase of the purchase.

The Seller Disclosure of Property Condition applies to all sales and purchases of residential real estate in Kentucky, except for in the case of a court supervised foreclosure, a sale of real estate at auction or residential purchases of new homes if a warranty is offered. The seller is only required to make disclosures based upon their observation and knowledge about the property from the time of their purchase through the date that the form was completed. Unless the buyer is otherwise notified, the seller is assumed to not possess expertise in construction, engineering, architecture or any other specific area that relates to the construction or condition of the improvements to a property.

In addition, other than having lived in or owned the property, the seller is also assumed to possess no greater knowledge about the property than what a careful inspection of the property by the buyer would reveal. The seller is also assumed to have not conducted inspections of generally inaccessible areas of the property, such as the foundation or the roof. The Seller Disclosure form if not a warranty and it is not a substitute for a professional inspection obtained by the buyer.

Use the Disclosure Forms for Due Diligence.

One good way for a property buyer to use the Seller Disclosure forms is to provide them to any property inspectors that they employ to inspect the property. This way, the inspectors will be able to verify any repairs that have been claimed by the seller, and they can further inspect any open issues reported by the seller. In addition, a buyer should carefully consider the impact of the disclosed condition of the property on pricing and resale value. You must make reasonable allowances for possible repairs and capital improvements when you negotiate for a property, and the disclosures can help you make these decisions.

Seller Disclosure of Property Condition forms are an important part of due diligence for a property buyer. They are also great protection for a seller to help mitigate potential issues related to fraud when selling a property. By placing the buyer on notice, the seller has made a good-faith effort to present the property for sale in the best-possible light. Take the time to carefully research the Seller Disclosure forms when you are considering buying a property, and make certain that you complete the forms as accurately and honestly as possible when you are selling a home.

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