The Importance of Seller Disclosure

lake-headerI am directing this post to people who are selling a home, but the knowledge is also important to folks who are buying a home. Oregon has very specific disclosure laws that all people selling real estate must abide by. There are a few exceptions, but they are rare.

To put it simply, when selling a house (this includes condos) you must tell what you know if it is material to the property. Material is physical and real. You must tell what you know. At the time that you list your property for sale you will be asked to complete a 5-page disclosure statement. This statement is a series of questions that will prompt your memory about everything from any deed restrictions to physical defects such as a leaking roof or faulty furnace. I advise my clients to leave no question unanswered. Even if it doesn’t apply to your property choose the option “n/a” or write “n/a” in the margin.

The point at which a buyer receives the disclosure statement is when their offer has been accepted. They are excited and eager to learn more about the house. Once they receive the statement they have 5 business days to revoke their offer. I also think of this as a bit of a cooling offer period. If they are going to get cold feet, let it happen early in the process and before the buyer or the seller have invested more time in the sale. So if the fact that the roof once leaked or the attic was once treated for mold is going to freak them out, find out early, let the deal come apart and everyone can move on. Doing it early is so much better than after the seller looses two weeks of market exposure while the buyer does a home inspection and then finds evidence of a past roof leak or of past mold.

So what should you disclose? EVERYTHING! Even if it seems minor. Even if it has been fixed and never happened again. This is your chance to tell what you know. Our disclosure statement has a 6th page for giving explanations. You can add a 7th, 8th, and 9th page. It simply is not possible to tell too much. When the buyer does the inspection, they are going to find evidence of past defects such as water stains or newer sections of plumbing. If nothing was said in the disclosure statement it makes the buyer feel suspicious. “What else didn’t they tell me?’. Where as if you have done a thorough job of disclosing, they buyer will find the evidence and feel like “OH, sure, they told me about that.”

The bottom line is that you have a legal obligation when you sell real property to tell what you know.

There are 4 exceptions:
If the house is brand new construction (in that case the disclosure requirement is replaced by the permit requirements of the local jurisdiction)
If the house is a bank owned property such as a foreclosure
If the sale is being handled by a legal entity such as a trustee, personal representative, conservator, or guardian
If the seller is a government agency

That’s it. Those are the only exceptions. This means that even if you have never lived in the house but have had it as an investment, you must still disclose what you know about the material condition of the property.

What if something is wrong with the property that you don’t know about? You do not have to disclose what you don’t know. You only have to disclose what you do know. So if the buyer does an inspection and finds defects you don’t know about you may end up negotiating to fix those defects but you aren’t at fault for not knowing about them before hand.

Now I’ve got to give my full disclosure. I am not an attorney. Always seek legal council if you feel you don’t understand this or if you have questions. What I am telling you is my advice based upon my experience.

I hope you have found this helpful.