Defects & Disclosures
The Property Disclosure Statement (PDS) is designed to protect all parties involved in real estate transactions. The objective is to encourage full communication so that buyers have as much information as possible concerning the property. Lawsuits are expensive and frequently result from a misunderstanding, communication problem, or lack of information.
Without a PDS, sellers may have difficulty establishing that a problem was disclosed to buyers, and buyers may be unable to establish that a statement was made or that information was withheld unless important information is confirmed in writing on the PDS.
HOW DOES THE DISCLOSURE STATEMENT HELP THE SELLERS?
The disclosure statement assists the sellers to review the condition of their property. It provides a written record of the representation made, and, just as important, not made. A complete disclosure statement will reduce the risk of a misunderstanding with the buyers. A frequent complaint from buyers is that a particular problem was not disclosed to them prior to purchase. Sellers should carefully consider each question so that all relevant information concerning that point has been included on the disclosure statement. It is up to the sellers whether they provide a disclosure statement to the buyers; however, most sellers are also buyers and they will recognize the appropriateness of providing a disclosure statement. Many sellers will recognize that a disclosure statement will increase the attractiveness of their property and will reduce the risk of possible claims by buyers as complete written disclosure was made.
HOW DOES THE DISCLOSURE STATEMENT HELP THE BUYERS?
The sellers, who know the property best, provide the buyers with some basic information concerning the property which may not be readily apparent to the buyers upon a casual inspection. This information covers some common historical problem areas and gives the buyers a list of points to consider in their inspection of the property. The information provided is valuable to the buyer to answer concerns they may have or to identify issues the buyer may want to investigate more fully.
HOW DOES THE DISCLOSURE STATEMENT HELP THE INDUSTRY MEMBER?
The Industry Member communicates information between sellers and buyers. If there is a problem, the buyers may claim misrepresentation or that information was improperly withheld. The sellers may claim they relied on the Industry Member to provide necessary information to the buyers. Industry Member is caught in the middle. Many claims can be avoided if care is taken to provide a properly completed disclosure statement to the buyers. The questions on the disclosure statement will assist the Industry Member to review all relevant aspects of the property at the time the property is listed for sale and will ensure that all parties involved in the transaction have the same information.
HOW SHOULD THE DISCLOSURE STATEMENT BE USED?
At the time a property is listed for sale, the sellers will complete the disclosure statement. Prospective buyers will want to review the disclosure statement, or will make an offer subject to their receiving and approving a disclosure statement within a specified time. Most buyers and sellers will want to make the disclosure statement part of their contract. Sellers will respond directly to the questions and add clearly worded comments as required to describe their property. Buyers will carefully read the disclosure statement and request additional information or arrange independent inspections as necessary.
WHEN IS A DISCLOSURE STATEMENT NOT AVAILABLE?
Sellers are not required to provide a PDS, but most do. Typically, there are several situations where disclosure statements are not available and usually relate to a situation where the seller did not live in the house. Some examples are:
- Foreclosures—the property is owned by a bank
- Relocation—a property is being sold by a relocation company
- Estate—the property owner died and an executor is selling the property