Seller’s Disclosure: What does a seller have to disclose to a buyer?

in a word: EVERYTHING… 

In the bad old days, the seller did not have this requirement placed on him and it was a case of Caveat emptor – “Let the buyer beware!”. Times have changed and the onus is now entirely on the seller to make known any and all material facts regarding the condition of the property he or she is selling.

In real estate transactions, the root cause for most problems is lack of disclosure by the seller. Funny thing is… most of the time it is entirely unintentional. Why would anyone in their right mind try to hide an issue that will come out anyway through inspections, diligent research or nosy neighbors happy to share any and all facts known or rumored about your home. Yes, your nosy Nellie next door did happen to see the foundation repairman and the roofer two years and will certainly make sure your buyer knows all about it – in great detail.

One interesting disclosure item that always causes issues is disclosing a prior death on the property. Now, deaths by natural causes, suicide, etc. are not required to be disclosed but those caused by a defect of the property or criminal activity – yes, DISCLOSE, DISCLOSE, DISCLOSE! Should you let the buyer know about a death that is not necessarily required? That is a judgement call you will have to make. Example: my brother-in-law bought a home in Austin a few years ago. When we visited, being the chatty gal that I am, I stopped by the neighbor’s house to introduce myself and learn more about the area. I found out in less than one minute that the prior owner had committed suicide in the backyard. Now, that is not a required disclosure item but… should it have been shared? Probably. Would it have caused a termination in the contract… Probably not. My feeling about the matter is: Would you want to learn about something of this nature from the seller or later from the neighbors? 

When I work with sellers, I deliver to them the Seller’s Disclosure form, a 5 page document that is required by the State of Texas to be filled out to the best of the seller’s ability and given to the buyer of any property within a mandated time frame according to the actual contract. There are individuals who are exempt from the use this form: Banks or other entities who own foreclosure properties, Probate administrators, etc. but the normal seller in the State of Texas must render this form… and that is where he/she gets in trouble.

I am often asked by my sellers…”Should I disclose this or that…?” As your Realtor, I am not allowed to assist in the completion of this form but my answer to that is always the same… a resounding YES! If the question was brought up in the seller’s mind, then YES, disclose whatever it is. The litmus test is you should disclose any and all items that if not disclosed, could cause the buyer to reconsider his offer. Meaning, if the non-disclosure of an item would cause your buyer to either make a different offer or pass on the property, then yes, DISCLOSE, DISCLOSE, DISCLOSE. Even if it was a roof repair 20 years ago…Again, I repeat… IF IN DOUBT, DISCLOSE. 

You can always explain your answer. I have had clients add several pages of explanation to the disclosure form, which is entirely appropriate. The disclosed item may have no affect at all on a buyer’s interest in a property. In fact, most homes (like people) have a past and as long as the issues are not on-going or improperly addressed, your buyer will proceed as usual. But by making your disclosure, your buyer simply will not have a reason to come back to you later if any and all matters are disclosed up front.

Another important item to disclose is any inspection report on the home within the last 4 years: structural, mechanical, environmental, termite, etc. And if you had a major issue that needed remediation (mold, for example), that really should always be disclosed even if completely re-mediated. You can again attach your explanations of repairs made and receipts for those repairs.

Disclosure items are a mine field of trouble if handled incorrectly so the best road to take is always the high road. Remember, you will be a buyer someday, too and will want your future seller to treat you as you should treat today’s buyer for your home.

One Response to Seller’s Disclosure: What does a seller have to disclose to a buyer?

  1. Blair Kolter says:

    Thanks for the Information, thanks for this useful Post. I will come back soon. Also great place for real estate information: sell your house quickly

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