SARAH ASHTON: Disclose – Avoiding a Canceled Contract

by Sarah Ashton, Broker Associate, Re/Max of the Islands

As the saying goes, you need a “willing seller and a willing buyer” to get a real estate transaction to the closing table. That being said, even the most willing of buyers would not overlook the seller’s failure to disclose what may be a serious issue with a property.

“Failure to Disclose” is in the list of the top 5 reasons why Real Estate Transactions fail. Simply speaking, this is when the Seller of the property doesn’t tell all he knows about current and past issues with a property. This often is picked up through the inspections on the property and omissions on the Seller’s Real Property Disclosure form. The seller fails to tell the full story on the history of issues and repairs on the property, as they know it, since they have owned it.

People in general and particularly those purchasing property, dislike surprises. Items that were not disclosed by a seller that were innocent oversights such as forgetting the actual year a disposal was replaced are usually not a deal breaker. These types of “oops” moments can be readily remedied. However, when the oversight was a roof leak that was repaired but not mentioned or an assessment that has been declared by the condo association that will be due after closing, these can be deal breakers. The Seller may or may not be responsible for any additional repairs or payments but it needs to be out in the open. In any case, the goodwill or trust between the parties may have been broken and the Buyer may choose to walk away.

Just because you have made it through the closing does not mean that any items that failed to be disclosed might still come back into play. It is not uncommon for issues with a property to become apparent after closing and the Buyer chooses to seek remedy and/or compensation from the Seller. It can get very ugly and expensive quickly and often the lawyers are the ultimate winners.

Do your best to be honest and thorough with disclosing items that are not functioning properly or that may have had an issue in the past that has been addressed. It will ultimately save you money and lost sleep.

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