If you are going to sell your home in the Austin, Texas area, your “seller’s disclosure” of material facts about your property is one of the most important things you will do.
What should you disclose?
· Disclose anything that reveals the actual condition of the property, the land, the neighborhood, etc. Material facts include known problems and defects with the home—systems and appliances, past and present wood-destroying-insect activity, settling or foundation issues, environmental hazards (mold, asbestos, lead-based paint, e.g.); developments like roadways that might affect property value; law suits or deaths affecting title to the property; flood zone or drainage issues; encroachments and boundary disputes; repairs done without permits or that do not meet current building codes; violations of deed restrictions; etc. This list does not cover everything that you may need to disclose.
· If you have a question about whether or not to disclose a particular item, it is best to get the advice of a real estate attorney.
· If in the process of selling your home you learn material facts (through an inspection report, e.g.) that you did not know about previously and did not include in your initial disclosure, you are required to disclose these issues to any other potential buyers.
· You are not required to disclose what you do not know.
Why should you make a full disclosure? After all, you might get less for your home or end up making some repairs you do not want to make? Here are three reasons:
· Your disclosure is required by Texas law.
· Your disclosure informs and educates the buyer. Knowing the material facts about your property allows him to make an informed decision as he considers his options in buying it from you.
A client I worked with did a faithful job in preparing his seller’s disclosure. The buyer’s inspection report, however, turned up some items that were not on the disclosure—items that the seller had no knowledge of. These included a termite problem and a leak from a pinhole in the second floor bathtub. The buyer considered the information in the disclosure, his personal observations of the home and the inspector’s report in deciding on continuing with the purchase of the property. In the end, this informed buyer decided to opt out of the contract.
· Your disclosure protects you. If you know about a problem, but choose not to disclose it, you put yourself in jeopardy.
Another client contracted to purchase a renovated home in the north central Austin area. The seller’s disclosure described a home with few problems, none of a serious nature. In our first visit to the home, I pointed out the cracks in bricks and mortar in a number of places around the exterior of the home. I said that these might be an indication of a foundation problem. Still, he liked the home and negotiated the contract. The inspector’s report highlighted the foundation problem, along with a number of other issues not in the disclosure. We then found at the midpoint of the bedroom floors a significant change in slope—a change that indicated a serious crack running across the foundation. Since the seller had done most of the renovations to the house, and since the carpet in these bedrooms had been replaced, we concluded that the seller must have known about this issue. Can you spell jeopardy? My client opted out of the contract.
How is the disclosure to be made?
For use in the Austin area, three groups (Texas Real Estate Commission, Austin Board of Realtors®, Texas Association of Realtors®) provide disclosure forms that you can use. The TAR form is probably the most commonly used, at least in my experience, and actually exceeds the legal disclosure requirements. No matter which form you use, it should be completed fully and carefully. Your initials and signature are required on the form, as are the initials and signature of the buyer (acknowledging its receipt).
When is the disclosure to be made?
The sales contract will specify that the disclosure is to be given to the buyer within a certain time frame, usually 2-3 days. It is best, in my opinion, to complete your disclosure prior to putting your home on the market. My practice is to make the disclosure available in the home and online with the MLS listing. This allows agents and prospective buyers to review it as they consider making an offer on your home.