A Picture Can Be Worth a Thousand Words: You Can Never Be Too Clear When Disclosing Known Facts
No home is without its peculiarities. Some would call it charm. But others classify these quirks as known issues that may, or may not, need to be disclosed upon sale. It’s not necessary to disclose every little problem, but determining the important issues–both legally and ethically–will go a long way in reducing your risk of a claim. Even if written disclosure is regulated in your state, accompanying images can provide added clarity for all parties involved. Here’s a typical scenario that may have been prevented if the agent was more aware of managing the level of potential risk in the sale.
The Situation
A real estate agent has listed a property with an average-size home on approximately 4 or 5 acres of land. The sellers have been in the property for over 10 years, and have completed a seller’s disclosure form including a positive answer for a “flooding” question. They disclosed there was some standing water on the property after heavy rains. There was no reported flooding in the home or its basement disclosed by the sellers.
The Problem
The home was sold during the dry season and there was no indication as to where or how much standing water there would be during heavy rains. The buyers and their agent did no further investigation into the issue prior to closing. When the rainy season came, the first heavy rain event resulted in standing water for two days over approximately ¼ of an acre of the property. The buyers were shocked by this result.
The Mistake
Knowing the significance of the issue, the sellers and the listing agent might have been a little more descriptive in the disclosure. There is a balancing act involved in disclosure, for sure. Playing it safe may tip the scale a bit, but being open will lead to a better sale for everyone.
The Result
The buyers made claims they overpaid for the property based upon the issue not being properly and fully disclosed. Ultimately, they filed a lawsuit against the seller and the listing agent which resulted in lost time and money to defend. The lawsuit was ultimately compromised with contributions from the seller and the listing agent in the amount of $50,000.
Prevention
When making disclosures of this nature, photos will go a long way to ensure the buyers cannot say the disclosures were not full and proper. No one wants a contested sale. Disclosing what you know, in the best way possible, is the smart way to do business and reduce your claim exposure.
Remember, it’s always important to determine the rules of disclosure in your state before making assumptions on what is, or is not, a problem to be disclosed. Using the most effective means possible to convey a disclosure will ultimately save everyone time, money, and frustration.
This article was produced in conjunction with XL Catlin and is not to be taken as legal advice.