When Selling Your Home, Disclose All

by Laura Jacobus

If you're putting your home on the market, better be sure you're ready to tell all - good and bad.

"The majority of lawsuits or claims that occur are as a result of buyers finding out about something that is wrong with their property after the close of escrow and coming to the belief that the seller knew but didn't tell them," says real estate attorney Peter Solecki of Winton & Larson, LLP.

Disclosure is vital. In one extreme case, it may have spared a seller from going to jail and even saved lives. The New York Times reported on a trial in the late eighties that found the seller of a home guilty for not disclosing to the buyers that the home's heater had malfunctioned. The buyers and one of their children were asphyxiated by fumes from a gas-fired heater used to de-ice the driveway of their home. Only their 4-year-old child survived. The seller was convicted of involuntary manslaughter.

This case is believed to be the first of its kind where a home-seller was held criminally liable for the sale of a home that had a fatal defect.

While certainly this isn't a typical scenario, it gives good reason to pay attention to the details that you're disclosing when selling your home. It's not worth it to leave off some important details just because you think the home won't sell or will sell for less money if you disclose any problems.

Reporting problems about your property prior to the sale of it can be done through various reporting mechanisms such as the Seller Disclosure Statement . But Solecki says some disclosure reporting statements are written in the present tense, which creates a reporting dilemma for some sellers.

Buyer Can Decide
"The seller will look at the Seller Disclosure Statement and say, 'Well, there was something wrong but it's not any more; therefore, I don't have to disclose it," Solecki says. He adds, "If [sellers] haven't disclosed it and it turns out to be a problem, then you have a potential significant issue, whereas if it's been disclosed, then the buyer can elect what to do with it."