After much debate regarding the necessity and advisability of an additional non-mandatory disclosure form and what affect it will have on a real estate agentâ€™s duty, the Seller Property Questionnaire (SPQ) is now in use. A C.A.R. study group determined that REALTORSÂ® state-wide believed that the statutorily required Real Estate Transfer Disclosure Statement (TDS) did not address or prompt disclosure of issues that were recurrent in real estate transactions. Many brokers believe that additional disclosures help avoid disputes, and some brokers already have policies requiring use of similar forms they created themselves. Some associations also already have forms available and are widely used in several regions.
The SPQ consists of three pages containing 35 questions, which are to be answered â€œYesâ€ or â€œNo,â€ with explanations where appropriate. Answers are to be based on the sellerâ€™s actual knowledge, generally regardless of the time involved. Defects in structural items, systems and appliances that have been repaired are to be disclosed. The SPQ is not a guarantee of the propertyâ€™s condition and it is not a warranty of future status. It is a â€œsnapshotâ€ of the sellerâ€™s good faith recollection. The buyer is still responsible to make an inspection, exercise judgment, and use common sense.
It is suggested that the new SPQ will help both the seller and the buyer in a transaction. The SPQ is intended to help the seller by eliciting information and trigging the sellerâ€™s memory to make full disclosure about the condition of the property and factors that might affect the buyerâ€™s decision to purchase. It is expected that this will reduce the possibility of misunderstandings with the buyer and avoid allegations fraud and lawsuits. This helps the buyer to decide whether to make an offer and what changes to request in the contract, including whether to add or remove contingencies, and adjusting the sales price according to the necessary repairs and inspections.
The SPQ does not replace the TDS or other existing forms, such as the Statewide Buyer & Seller Advisory (SBSA) issued in October 2004, or the Supplemental Statutory and Contractual Disclosure (SSD) revised in October 2004.
The SPQ is not mandatory by law and is not referenced in the Residential Purchase Agreement or other C.A.R. form contracts. However, if a provision incorporating the SPQ by reference is added to the Additional Terms paragraph in the Offer, or is included in a Counter Offer or an Addendum, then completing and delivering the SPQ becomes a contractual requirement.
Although the delivery of the SPQ does not trigger rescission or cancellation rights, the delivery timing of the SPQ may affect the rights of the buyer receiving it. C.A.R. suggests the SPQ be prepared and delivered at the same time as the TDS so that legal and contractual rescission and cancellation rights run concurrently.
â€¢ Delivery before an offer: The buyer can consider the disclosure when deciding on a price or requests to make of the seller during the inspection period.
â€¢ Delivery after an offer and during inspection period: The buyer can consider the disclosure when deciding whether to make requests of seller before the inspection period ends and whether to remove an inspection contingency or cancel the contract.
â€¢ Delivery after inspection period ends and after TDS delivered: A court may find this to be an amend- ment to the TDS or a subsequent disclosure or amended disclosure that triggers either a statutory right of rescission or a contractual right of cancellation.
Rebecca has given you a very thorough answer, I would like to add that as an agent representing either a buyer or seller, I like to use it, as it does offer more information to the buyer, than what is required on the TDS. Its very helpful for upgrades done to the property or explaining things that may have been fixed (ie a leak) and painted over, and wouldn't necessarily be seen or found by a home inspector.
Its purpose is to give the buyer as much information about the property as possible, and by disclosing more to the buyer, it will (ideally) protect the seller from future liability.
The buyer really should have it in hand before the home inspection as it can help them to know if there may be an item or two that may need an extra look during the course of the home inspection.
Is there a reason you wouldn't want to provide the SPQ? I know there is a lot of paperwork involved when selling a home and you get a little weary of it!
The Home Inspection is for buyer's protection only. It is optional. The buyer can choose to have it done or don't do it. The Seller Property Questionaire is for the seller's protection complying the disclosure laws. They are two different thing. Yes the SPQ is required by laws in CA. It is a must. The contract won't be completed without this form.
The SPQ discusses all known current and past issues with the property. An inspector would likely miss a roof leak that has been repaired properly etc. Also it asks about neighborhood noise and other issues that would not be brought up on a physical inspection report. The bottom line is the more that is disclosed, the better..even if it seems redundant. It will hopefully prevent a law suit in the future and should give the Buyer plenty of information to help decide if it's the right property for them.
The seller questionnaire and the transfer disclosure statement are required disclosures for residential properties. The thought process being that the owner has lived there and knows not only current issues but but also past issues related to the property. The home inspector is only there 2-4 hours and may not discover all items. (i.e. attic to crowded to see x, y, z) Between the seller's knowledge of the property and a professional inspection, the buyer is more likely to get a complete picture.