Dear Barry,
As a veteran Realtor, I’m writing to disagree with the advice you gave in a recent column. Basically, you said that sellers should provide additional information to buyers if they believe the home inspection report is incomplete or incorrect. This is very misleading to your readers. There’s nothing in the disclosure law or in the disclosure forms that compels sellers to double-check or amend the disclosures in the home inspector’s report. How can a seller know more than a home inspector about property defects? And since when are sellers expected to review and correct the findings of a home inspector? This kind of misinformation can create confusion in real estate transactions and may increase liability for everyone involved. Don’t you think this warrants reconsideration? –Michael
Dear Michael,
It appears that you gathered more from my recent article than was intended or implied. By no means are sellers required to scrutinize the accuracy or thoroughness of a home inspection report or to amend a home inspector’s findings. But this does not excuse sellers from speaking up when an obvious oversight or inaccuracy in the inspection report is discovered.
Real estate disclosure is a liability mine field upon which sellers, agents and home inspectors must cautiously tread, and the letter of the law is not always the first and last word of prudent direction.
Transfer disclosure laws consist of typically complex, legalistic verbiage, but in essence, they are quite simple. Basically, sellers and agents must disclose whatever they know that could be of concern to a buyer. That’s it. We can parse the finer points of legalese and scrutinize whatever loopholes might be found, but what truly matters is that no significant information about the property be withheld by anyone. If the sellers read the home inspection report and realize that the inspector has incorrectly reported a condition, should they say nothing? If so, what happens when the buyer discovers the truth after the close of escrow? If a lawsuit ensues, are the sellers absolved of responsibility because they were not obligated to critique the inspection report?
The bottom line of real estate reality is liability exposure versus liability reduction. Those who participate in the business, either as professionals or as investors, should know this. Articles on disclosure liability abound, particularly in professional real estate journals. Seminars on disclosure procedures are featured at nearly all real estate conventions. It therefore behooves all agents and brokers to do whatever is reasonable and prudent to minimize the likelihood of legal encounters after transactions have closed. This, of course, includes the counseling of sellers to disclose to the max, whenever possible and without reservation.
In today’s real estate environment, as in most fields of business, everyone is subject to potential assault by a vigilant army of litigious attorneys. If that were not so, the real estate purchase contract would still be a one page construct, we would have no transfer disclosure laws, and there would be no home inspectors to amplify the disclosure process.
To write to Barry Stone, please visit him on the Web at www.housedetective.com.
