Disclose, Disclose, Disclose!
Question:
Marsha, I’m ready to put my home on the market. I am selling the house strictly “as is”. My agent insists I fill out a long list of disclosures. Is this really necessary?
Answer:
Yes, yes and absolutely yes! Disclosures in real estate are such an important subject it would be impossible to explain it in one short answer. What I will explain is how it arose that the seller and agents must disclose all material facts about one to four unit residential properties.
First of all an “as is” sale simply states the seller will not repair or fix any issues with the house. The price received will reflect this. The seller is always required to reveal pertinent information about the property. The facts to be disclosed include all past, present and known future information about the property and home.
Not so long ago it was caveat emptor, or “buyer beware” for real estate sales. The onus was on the purchaser to discover information before the sale. Home inspections were rare.
In 1984, the decision in the Easton vs. Strassburger lawsuit changed the way we do real estate in California. Real estate transactions shifted from “buyer beware” to the current environment of total disclosure by the seller.
The Eastons purchased a home in 1976 in Contra Costa County. Not long after the $170,000 purchase there was massive earth movement and a slide on the property. The damage was so severe that the estimate to repair and control future slides was around $213,000. It turned out that the sellers, the Strassburgers, had a slide in 1975 but they hadn’t told anyone during the sale, not even their agents. The Eastons sued, and the Strassburgers were found liable. This decision helped to create the Transfer Disclosure Statement (TDS). This is the document sellers use to list disclosures regarding the property.
During the suit it was revealed that there had been clues about the slides that the agents had noticed. They stated that they had seen netting on the hillside and buckling in the driveway, but they hadn’t mentioned it. The agents should have investigated the “red flags”, and they were also found partially liable. Out of this case came the Agent’s Visual Inspection Disclosure (AVID). In this document the agents state relevant facts they can see and know about the house and land parcel.
Today we live in a world of real estate alphabet soup. We have the TDS, AVID, SPQ, SBSA, MCA, CMD and on and on. Real estate files have grown from two or three pages to two or three inches thick.
Remember, it’s easier to prevent legal issues than to solve them. Legally and ethically sellers must disclose all facts that they know about the home. Buyers today are in a 1000% better position than they were 40 years ago. And that’s a positive for all of us.