Seller Disclosure Report
Right At Home
Daily: Take It And Run: Legal Seller Disclosure Report
By Samuel J. Tamkin for Right at Home Daily
Do sellers have to tell you about problems in
their home that you can't see? The answer, generally speaking, is yes, and most
states require the seller to deliver this disclosure in writing, via a completed
"seller disclosure" form.
Most
states require sellers (even those selling "by owner") to
disclose major defects known at the time the form is completed. If the seller
has fixed a problem, the seller might indicate that he is "unaware"
of a material defect relating to the home. But if the seller has repeatedly
repaired the same problem, he should disclose this problem and indicate what
has been done to take care of it.
Buyers should carefully review the seller disclosure
form to see if the seller checked off any item to disclose a defect. If there
are items checked off, hire a professional home inspector or other professional
to investigate the situation further. If you've already had an inspector tour
the home, ask if he'll come back to look into the defect listed.
You should also ask the seller for additional
information about the cause of the defect and for the name of the person or
company that made repairs to the home. Contact the repair company to determine
what was done and what is the likelihood that the problem will return. Ask if
there is something further the seller could have done to correct the problem.
If you close on the home knowing it has a defect
and there is a recurrence, you'll have to pick up the cost of the repair, and
probably won't have any recourse against the seller. However, if you close and
there is a recurrence of a problem the seller did not disclose, you may have
the right to seek reimbursement for your expenses for repairs under limited
circumstances:
1. Can you prove the seller knew of the defect
prior to selling the home? Did he have the defect repaired over and over again?
Did he cover over the problem area, like painting a ceiling to mask a roof leak
or painting a foundation wall to hide a crack or leak?
2. Can you find evidence that the seller took
steps repeatedly to fix the problem? Frequently, neighbors know if contractors
or repair people come to the home and they may be a source of information. Local
repair companies can give you an estimate to repair the problem and may have
provided similar estimates (and have copies) to your seller.
3. If you can prove that the seller knew of a
defect, you'll need to determine whether the cost, time and effort of chasing
the seller is worth it. Determine the cost of repairing the problem and if you
can recover attorneys' fees if you prevail against the seller. Some states permit
a buyer to recover attorneys' fees from a seller if the seller was required
to disclose a defect and failed to do so.
Finally, if you decide to go forward, consult
with the attorney or agent who assisted you in the closing of your home. They
may be able to direct you to an attorney that specializes in seller disclosure
issues and litigation.
