Buyers don't care what you tell them as long as you tell them. That's my opening statement when I hand home sellers a package of disclosures to complete. It's the things you don't tell a buyer that can come back to haunt you, not what you do say.
You take a neighborhood where I live and work like Land Park. Because I live in Land Park, I have intimate knowledge about the neighborhood, which agents who live outside of Land Park probably don't know. If they don't know, they can't disclose those facts to a buyer. Although, it could probably be argued that they should know or should at least have asked questions of the seller. On the front end of my marketing, I sell the delights of living in Land Park -- the friendly neighbors, tree-canopied streets, fabulous restaurants and our special attractions such as William Land Park, the Sacramento Zoo, Fairy Tale Town, the Rock Garden, and Vic's ice cream.
But there is also a downside -- as there is with any neighborhood, I don't care where you live. For example, I know which areas in Land Park routinely flood during a hard rain. I know where the feral cats, skunks, opossums and raccoons roam. Which streets get foot traffic and the origination of that traffic. When noise factors such as trains or freeways can be present. Parking ordinances. Which trees are protected. Selling homes in Land Park means more than what we used to call selling real estate in the old days: selling carpets and drapes. That used to be the definition of residential real estate sales in the 1970s. Except nowadays it's more like selling hardwood flooring and plantation shutters.
The thing is after escrow closes, odds are something in that buyer's new home will probably malfunction. And the minute it does, the buyer is likely to immediately jump to the conclusion that the seller knew about it and purposely withheld that information or concealed that defect. It's human nature. We're a suspicious bunch of people.
So, how do you bump up the odds that you won't get sued after escrow closes? You hire an agent who can explain the inherent problems with some types of seller disclosures and can give you the right documents. You find a Land Park agent who knows the nuances of your neighborhood. I tell my sellers to disclose all material facts. If I know a material fact, I disclose it. I go into great detail about what a material fact is and why it's important. I help sellers to recollect and disclose. We talk about the Transfer Disclosure Statement.
The other day a seller objected to a point I made in a disclosure. She wanted me to remove a sentence about the possibility that a neighbor's dog might bark. No can do. The tenant told me the dog next door barked. I don't know if the dog barks. The dog wasn't barking in my presence. I noted that I did not hear the dog barking but the tenant said the dog barks. This disclosure doesn't appear in my marketing materials. It appears on the agent visual inspection, on which I obtain the buyer's signature, along with a pile of other documents after offer acceptance. I'm always thinking one step ahead of ways to protect my sellers yet conform to the law. That's my job, and I take my job seriously.
The point is it's not what you say, it's how you say it. I don't want my sellers ever ending up in court. Not if I can help it. And I can.
Photo: Big Stock Photo
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Certified HAFA Specialist
My Sacramento Real Estate Listings
Elizabeth Weintraub is an author, home buying columnist for The New York Times-owned About.com, a Land Park resident, and a Land Park real estate agent who specializes in older, classic homes in Land Park, Curtis Park, Midtown and East Sacramento. Weintraub is also a Sacramento Short Sale agent who lists and successfully sells short sales throughout the four-county Sacramento area. Call Elizabeth Weintraub at 916.233.6759. Put 35 years of real estate experience to work for you. Broker-Associate at Lyon Real Estate. DRE License # 00697006.
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My motto is that I would rather to call them and tell them that I know nothing, than not call them at all. If they feel that we are deserting them, it is going to created tension that could have been avoided with open communication.
Elizabeth, you are absolutely right! Disclose! Disclose! Disclose! Than nobody will be blamed but Buyers themselves! Keep up a great job!
Hi Elizabeth- I totally agree. And seller's disclsoures, well can be less than comprehensive. I always go over it with my sellers and fill it out have them sign it. I've seen agents who let the sellers fill it out on their own and likely never even read it...
Elizabeth - I too am all for seller disclosures too. The ones that I have issues with are the REO LA's and bank sellers who hide behind bank addendums saying they know nothing when in fact they do. They are well aware of certain property conditions based on the findings from that previous escrow that was cancelled and the buyers stated what was wrong with the property.
They also are very aware of all the city/county code violations that they have received on the property that they also refuse to disclose until the buyer finds out on their own. Just because they never lived there doesn't exclude them from disclosing stuff they have become aware of since they foreclosed. They have no right to hide behind bank addendums on stuff that they undeniably know to be true about the property, same goes for their REO agents.
Ok, my little mini rant is over and I'm getting down off my soapbox now. Have a good day Elizabeth and a wonderful Halloween weekend. :)
I over-disclose--if that is even possible. My AVID is always overflowing with notations and remarks!
Great post! And so well written. Worth a re-blog. Thanks!
Another great post Elizabeth. I figure if I keep reading your posts then someday I might be as smart as you. Do you issure a diploma to us readers after a we have read a certain amount of your posts?
Very nice point but also very nice meez.com caricature on the sidebar, too.
I tell my sellers to disclose everything. Everything that might bother them or that they think might bother someone else, even if it doesn't bother them - dogs barking, etc. in addition to repairs, leaks, etc. It's just the smart thing to do.
Once sellers realize the importance of disclosing, their reluctance turns into willingness to reveal all they know about the property.
Jane Pacheco
I wish everyone made the same effort you make on disclosures!
Disclose, disclose, disclose never under disclose. Everything that is a potential problem or concern.
What about a one-time issue caused by a power outage? My sellers' basement had some water (not serious) because a sump pump couldn't operate without electricity. It wasn't a basement issue, it was a utility company issue. I verbally disclosed but the seller refused to disclose on the document, and I am not sure I disagree. The property is fine; the service provider is not. Nothing can be done about that, particularly when it's a catastrophic situation. Good thing the homeowners stayed on top of it throughout.
I agree. It;s one of thse times when it is better to say too much than too little. I esp. agree with Donne in comment #4. Now that we are seeing sooooo many REO's banks are getting away with too much, but that's always been true! Someone also said THEY fill out the seller's Disclosure? That's illegal in these parts!
Great post. I'm sure we've all seen that look in the sellers eyes when we tell them we want them to disclose everything. A sudden sinking feeling sometimes bubbles up. Then I mention that how important it is and that once the house is sold they can take comfort that the buyer won't have an arguement that something wasn't brought to their attention. In disclosing all one knows the odds of getting sued dropped significantly. Who wants to have something come back to haunt them? Even on Halloween.
Happy Halloween
Hey Tammy: While I go over the disclosures with the sellers and discuss them, I never fill them out. If the seller is unable to do it, then the seller needs to find a relative to do it.
Hi Donne: Yeah, some of those REO banks are going to have stuff come back and bite them big time. Especially the banks who refuse to turn over previous home inspections and pest reports. I don't know what they are thinking.
Hi Jim: Oh, come on, you're probably smarter.
Hey Cheryl: You know how long it took me to decide on the nose? The hair was easy but that nose was hard.
Hi Jane: While I'd like to believe that all people are reasonable, it doesn't take Jon Stewart to tell me that they aren't, even though I love him to pieces. Some sellers don't understand the reasons for disclosure, even when explained 3 ways from Sunday.
Hi Susan: I would have disclosed regardless. All you have to say is the sump pump won't work if the electricity goes out, which the seller discovered during a power outage. If the seller refused to disclose that issue, I would have emailed it to the other agent, printed a copy, noted the sellers' refusal to disclose and put it in the file. A seller can't make you break the law.
Hey Bill and Frank: I suggest using as few words as possible to disclose. The more words a person uses, the higher the risk. I once had a seller email me a 4-page addendum, describing all the potential problems, things that never happened, probably never will happen, because he was freaked out. Because I had that document in my hands, I was forced to give it to the buyer. Oy. Something that some agents don't know is when you make a new disclosure, after the contingency period, you've just handed the buyer the right to cancel (in California) and to be entitled to a release of deposit.
Happy Halloween, everybody.
My rule of thumb, and what I tell sellers, is: if it crosses your mind to ask "Should I disclose this?", then disclose it. Totally agree with you, people never freak out about things they know up front. Also I want to add "AMEN!!!" to Donne's comment (#4). Nondisclosure on REOs is a big problem. I heard an REO agent lamenting a listing she had where the septic system was nonfunctional, had no possibility of repair, and was not in a location where city sewer service could be obtained. In other words, the house was not habitable and never could be. The bank knew it and had specifically instructed her NOT TO DISCLOSE IT!!!
Here in PA we see sellers who inherit or who have executor power just sign off on the disclosure that they don't live in the house and know nothing. Sometimes these sellers do indeed know of a roof issue or a water problem. If you know it, you must disclose, period.
I always tell my sellers: If there is a question in your mind about whether you should disclose something, disclose it. A buyer who makes an offer on a home is already in love with it, and few things will derail them.
Oh so true.
Great post! I always tell my sellers, "Tell me everything because if you don't your neighbors will!"
The issue I have with disclosure rules (Tennessee) is a big loop hole for someone who hasn't lived in a house in the past 3 years: exemption from disclosure. If you own a property; and the roof leaks, the toilet backs-up, or the air conditioner has problems--the occupant called you and wanted it rectified. How can you be exempt?
My mother owns a home--I have no ownership; but who do you think she calls when something broken? I have never lived in, nor had a ownership stake in that property. Should she pass away, and my brother and I put it on the market, we are exempt from disclosure.
Note: I have a dual obligation to disclose: (1) as a REALTOR®, disclosing what I know, and (2) to protect my mother's estate from potential legal action. Beyond that, there is a Biblical principle--commonly known as the Golden Rule.
Elizabeth, thank you for the post, and for reinforcing my belief that I should be confident that a fellow REALTOR® will uphold the code of ethics to which we subscribe.