Jump to 👉When to make disclosures | Risks of not disclosing or lying | Caveat emptor states | 6 required disclosures for sellers | Seller disclosure forms by state | How to complete a seller’s disclosure
Most states require sellers to disclose facts about their property’s condition that could affect a buyer’s decision to purchase their home. These facts typically appear in a legal document called a seller’s disclosure – also referred to as a property disclosure, property notice or disclosure statement.
Seller’s disclosures give potential buyers a better understanding of the home they’re about to buy, protecting them from ending up with a home that has significant defects they weren’t aware of.
Property disclosures also protect the seller from liability. When known material facts are disclosed in writing, a buyer can’t take legal action against the seller concerning those items. But exactly what a seller needs to disclose, and when, varies widely from state to state.
Read on to learn why sellers should present disclosures early in the process — plus the required disclosure laws in your state.
Experts Recommend Providing Seller Disclosures Before an Offer
While it’s not required everywhere, the realtors we spoke to recommend including your seller’s property disclosures in your initial listing — or at the very least, making disclosures available to prospective buyers before they place an offer.
You should then ask buyers and their agents to sign and date your property disclosure form and include it with their offer. This way, you’ll have it in writing that the buyer acknowledges and accepts the conditions of your property before making an offer.
Offering up your seller’s disclosures before receiving offers is beneficial for a few reasons.
Benefit #1: The buyer can’t terminate the offer based on seller disclosures
In most states, buyers have the opportunity to back out of a sale without penalty if disclosures are given after an offer is accepted. (However they can still back out if something new is unveiled during the home inspection.)
By presenting your disclosures early, you’ll minimize the risk of losing your buyer in the process.
Benefit #2: The buyer will be less likely to negotiate disclosed items
Since the buyer is well aware of crucial property information, any repair costs should be reflected in their initial offer.
Benefit #3: The sale process can be faster
With less room for negotiation and all of the information laid out up front, you can likely expedite the sales process.
Benefit #4: You’ll have peace of mind knowing you did the right thing
By communicating early and honestly, your buyer will be informed, helping them make the right decision for their finances and safety.
What happens if you don’t disclose or lie on a seller disclosure statement?
If you choose not to disclose issues with your property, or you lie outright, you put yourself and the buyer at risk.
Potential ramifications include:
- Losing the Offer: During a sale, your buyer might learn of a known issue during an inspection – like a rat infection with traps placed by the seller – and could decide to terminate the offer for fear of an untrustworthy seller.
- Fees or Penalties: Your state government may charge a fee if you refuse to provide a seller disclosure at the required time.
- Lawsuits: Once your property is sold to a new buyer, legal action could be taken against you if a significant known problem comes to light.
- Harm to the Buyer: On a moral level you could be putting the buyer at risk for health and safety issues.
When Is a Property Condition Disclosure Legally Required?
Most states require sellers to provide property disclosures to the buyer no more than 10 days after accepting an offer, although the exact number of days depends on your state.
After you provide the disclosures, the buyer typically has 3-5 days to review the disclosures and terminate the sale without penalty if they find a disclosed item unacceptable.
However, this varies by location. Some states require sellers to present property disclosures before accepting an offer. Many sellers choose to do this anyway – even when it’s not required – to get disclosures out of the way, expedite the sale, and lower the risk of the buyer backing out.
In either case, timelines and requirements can vary widely by state. You can find disclosure requirements for all 50 states here — but your real estate agent or attorney will be in the best position to advise you on the specifics.
Which States DON’T Require Seller Property Disclosures?
In 2022, nine states don’t legally require sellers to disclose information about their property. This is known as “caveat emptor,” or buyer beware.
|Caveat Emptor States|
|New Jersey (NJ)|
|West Virginia (WV)|
The only exception in caveat emptor states is the federally mandated lead-based paint disclosure. Since “buyer beware” states place the burden on the buyer to fully investigate a property before purchasing, buyers are encouraged to ask lots of questions and get a thorough home inspection in place of required disclosures.
In some “buyer beware” states, minimal disclosures are still required, but they generally only apply to rare property situations. For example, Virginia is technically a caveat emptor state, but still requires sellers to disclose a few uncommon situations, like a damaged septic system or if the home was used to make methamphetamines.
Additionally, some “buyer beware” states still require seller’s agents to disclose known material facts, if not the sellers themselves. In short, the actual laws vary significantly among caveat emptor states, which is why it’s so important to work with an experienced agent or attorney.
⚠️ Caveat Emptor Doesn’t Mean You Can Withhold Information or Lie
If you’re selling in a “buyer beware” state, we still recommend providing property disclosures.
Caveat emptor states place the responsibility of uncovering material defects on home buyers — but all states include legal language requiring sellers to be honest when answering questions. Sellers in caveat emptor states are also sometimes required to proactively disclose defects that could impact a buyer’s safety.
In other words, you can definitely still get sued for withholding information or lying – even if you’re selling in a caveat emptor state.
What Do I Have to Disclose When Selling a House?
No matter what state you live in, you only have to disclose things you know about. You do not need to hire inspectors to gather information or uncover material defects for your disclosures.
But disclosures aren’t limited to current problems. Even if a past problem with your house has been repaired, you’re still required to disclose it, noting that the problem has been addressed.
Beyond these basic ground rules, there are six common requirements you’ll find in most disclosure forms.
6 Required Seller’s Disclosures
1. Lead-Based Paint 🎨
The federal government requires all sellers (regardless of state laws) whose homes were built before 1978 to give buyers:
- An EPA-approved pamphlet
- Any known information concerning the presence of lead-based paint or lead-based paint hazards in the home or building
- An attachment to the contract, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the seller has complied with all notification requirements
- A 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards
2. Toxins ☣️
The presence of radon, asbestos, formaldehyde, mold, and other toxins are important to include in your seller disclosure, as they can affect the health and safety of anyone moving in.
3. Pests 🐁
Fleas, roaches, rodents, termites, bats, bedbugs, and other creepy crawlers can cause significant damage to a home – often unseen. If you notice even minor infestations or signs of past damage, you should disclose them.
4. Structural Issues and Hazards 🚧
Any major issues like foundation cracks, flooding, or burst pipes should be noted in your property disclosure.
5. Death In the House 💀
In many states, you’re required to report deaths in the house that happened within recent years. Some states limit the requirement to murders and suicides. Others go as far as to require disclosure of any perceived paranormal activity.
6. Property Easements and Disputes 📍
If you have an easement with another property owner or jurisdiction, you’ll want to disclose that information. Similarly, if there have been disputes with other surrounding property owners, a future buyer should know about it.
|✍️ Editor’s Note: Required disclosures vary by state and change frequently. The best way to navigate disclosures is to talk to your agent and investigate regulations for your area and situation.|
Property Disclosure Forms By State
Many state governments provide standard real estate disclosure forms for free on their websites. Some states appoint real estate agents and associations to create these forms for their seller clients or public use.
Use the table below to find the required property disclosure form for your state. If a state does not have a required form, a link to the state’s general regulations is included instead.
5 Steps for Completing a Seller’s Disclosure Form
Step 1: The first step to a stress-free home sale is finding a great agent to guide you through the process.
Step 2: Pull up previous inspections, repair receipts, and other documents so you’re prepared to report any items to the best of your knowledge. You don’t need to go out of your way to find out unknown information about your home – just gather what you do have to make the process easier.
Step 3: Complete the designated form in writing (by hand).
Most forms include:
- A list of specific issues the homeowner must check off if the home has them
- Questions about the property the seller must answer with “Yes,” “No” or “Unknown”
- Space to provide further explanation of the issue and if it was fixed
- Space to provide additional disclosures not listed in the document
Try to be as comprehensive as possible. If you’re unsure about something, ask your seller’s agent or real estate attorney.
Step 4: Make a digital copy and ask your agent to upload it to your MLS listing (if listing on the MLS). You may also have your seller’s agent make it available during open houses or showings of your home.
Step 5: Ask potential buyers to sign and date your disclosure and include it in their offer. This way, you know that the buyer understands the conditions of the property and still wants to move forward with their offer.
|🏡 Note for FSBO Sellers: If you’re planning to list for sale by owner (FSBO), you’ll need to do some research and find the appropriate form on your own. In some states, there is no state-provided form and you’ll need to create your own that fulfills the local requirements. To get started, check out resources in your state here.|
FAQs About Property Disclosures
What is a property disclosure?
A property disclosure is a legal document that’s completed by a seller to disclose facts about their property’s condition that could affect a buyer’s decision to purchase their home. It’s required in most states before or during the closing process. Learn more about which disclosures are required in your state.
Do you have to disclose a death in a house?
In many states, sellers are required to disclose deaths that took place in the house in recent years – though the period of time can vary. Some states limit the requirement to murders and suicides. Others go as far as to require disclosure of any perceived paranormal activity. Learn more about common seller’s disclosures.