What Do Sellers Have to Disclose?
/Ohio and Kentucky both have laws regarding what a seller needs to disclose about a residential (1-4 family) property when selling, which types of sellers are exempt from those disclosures, and specific forms with detailed questions about the property. There are also several misconceptions about what a seller has to share, and about the consequences for doing so. Before I get too deep into this, please note that I am not an attorney, so what follows is not intended to be legal advice — just what I would advise any real estate client based on my experience.
The point of a property disclosure from the seller is to share any relevant material facts about the property, especially those which might not be obvious at first glance or even during an inspection. As I tell all of my sellers, it’s also the perfect opportunity to show that you fixed the issues that came up, developing some trust with the buyers that you’re not trying to hide anything. Leaky roof? That’s fine, you replaced it with new 30 year shingles. Heat pump failed? No worries, you replaced it with a more efficient one. Bathroom sink leaked into the room below? You had everything fixed professionally, some drywall replaced, and everything repainted.
Something I see often that concerns me are disclosures from non-occupant owners (usually investors) with the phrase “never occupied the property” and sometimes “seller has no knowledge about the property". What a ridiculous thing to say! Unless you only owned this for a short time and never had anyone lay eyes on it, you definitely know something about the property, such as whether it’s on public water and sewer — pretty sure you know which bills you had to pay, so why not answer that question? Many investment properties have been in the same hands for years, though, so if you’re a landlord who has had any work done to your investment property, speak up. You’re just leaving yourself open to potential lawsuits if you don’t, and making it harder for buyers to evaluate your property. If you made any repairs or upgrades, brag about it! If you get that boiler serviced annually, tell the world! You will automatically sound more responsible and respectable than other sellers.
I mentioned earlier that some sellers are exempt from completing the property disclosure form, which is true. The Ohio Association of REALTORS lists the following conditions as possibilities:
A transfer pursuant to a court order, such as probate or bankruptcy court;
A transfer by a lender who has acquired the property by deed in lieu of foreclosure;
A transfer by an executor, a guardian, a conservator, or a trustee;
A transfer of new construction that has never been lived in;
A transfer to a buyer who has lived in the property for at least one year immediately prior to the sale;
A transfer from an owner who both has inherited the property and has not lived in the property within one year immediately prior to the sale;
A transfer where either the owner or buyer is a government entity.
Kentucky doesn’t allow for quite as many exemptions. According to their Seller’s Disclosure of Property Condition, the only situations in which the form is not required is if the property is new construction and being sold with a warranty, or it is being sold at auction, or it is a court supervised foreclosure. It’s also worth noting that the Kentucky form is much more thorough than Ohio’s, and many of the questions are very specific with follow-up questions where applicable. While you always have the option to not complete these disclosure forms (we can’t force you), failure to disclose a material defect in a property leaves you open to legal consequences. Also, if you tell your licensed real estate agent about a material defect that you don’t include on the disclosure form, they are legally and ethically bound to share that with any potential buyer, so you might as well err on the side of honesty.
Last week a buyer asked me whether a seller in Ohio needed to disclose any deaths in the home. It’s not the first time I’ve been asked this! The short answer is no, there is no question on the property disclosure form that covers this and for most deaths that occur in the home (the peaceful passing of an elderly person, for example), there would be no material issue with the property as a result. However, a seller should probably disclose if there was a more unusual situation — suicide, murder, accident, etc. I had a listing a few years ago that was next door to another active listing where a well-publicized kidnapping and murder had taken place. I don’t know whether it affected my client’s sale, but I am sure that many prospective buyers of that neighboring home would have been very upset to not be informed about the history of that home before they moved in.
I’ve heard many questions that no seller has to answer, although it can’t hurt to ask the question if it’s important enough to my client. Examples include the sellers’ reason for moving, where they sent their kids to school, whether there is good wireless service in the house, how often (if ever) the ductwork gets cleaned, whether the sellers have noticed any ghosts, what the neighbors are like, and so much more. As a seller, be ready to answer as many questions as you can, especially if it gives you positive information to share — buyers feel more confident about making an offer and more understanding about their home inspection results when they have as much information as possible from you. This means quicker offers and a smoother transaction!
P.S. Every state has different laws, so it’s important to consult a licensed real estate agent and/or an attorney who specializes in real estate law if you have any questions or concerns about what you should share about any property you are selling.
