Advice sought regarding sellers disclosure modification rules

Asked by Tmb, atl Mon May 19, 2008

We have an offer on a home in Cobb. The asking price was good value. During inspection, in a corner of basement inspector noted carpet was damp, pulled up the carpet and while there was no puddling the wood tack board was damp and slightly moldy. No obvious sign of long term water presence/leakage. House is 28 y.o.. Carpet seems new. I’m suspicious - did seller low ball price, hoping for quick sell w/o disclosing leak and hiding it under new carpet? I learned seller was incorrect on disclosing HOA special assessment fees.
Input sought on:
I asked my agent "what would show up on the current sellers disclosure - would it show that the leak was found?" Her response: leakage would not need to be disclosed to other potential buyers at this point while we are under contract negotiation timing. If we terminate the contract, the sellers would then need to disclose the leak or disclose that there was a leak and its been repaired.
Is this correct?

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James Dudley, Agent, Suwanee, GA
Tue May 20, 2008

If the seller did not know there was a leak how can they disclose it?? It's hard to prove if they were aware or not. Now that that your inspector has made them aware they must disclose.

Ask the seller to repair the leak and use a company that will warranty their work. Also be sure to ask for a home warranty that covers these problems if they arise again.
2 votes
Vicki Masell…, Agent, Duluth, GA
Wed May 21, 2008
I concur with both Ms. Wheatley's & Mr. Dudley's answers. If you are under contract to purchase and this discovery of a potential water leak or moisture penetration issue causes you concern, then ask the seller to repair the source of the problem by a reputable repair contractor specializing in such water leaks/moisture penetration and backed by a warranty. If the seller is unwilling, discuss your options with your Buyer's agent.

When it comes to disclosure of known defects or issues with a home, the best rule of thumb for sellers and agents alike is to disclose such problems as well as any repair actions taken. I would not spend too much time trying to second guess the seller's intentions on pricing or HOA fees. The seller's disclosure is a long and laborious form to complete. It is easy to overlook a question or forget an occurance that happened possibly years earlier (I can barely remember what I ate for dinner last night...). HOA dues and special assessments frequently change. If the seller did not regularly read the neighborhood newsletter, the routine mail or visit the subdivision website, there is a high probability that a change in such fees can be innocently overlooked or missed.

Best wishes with your home purchase.

Ted Shoop
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1 vote
Diane Wheatl…, Agent, Upland, CA
Mon May 19, 2008
Agents and sellers alike must always disclose, disclose, disclose. If you had noticed this leak during your various visits to the property with your agent then it should have been brought up at that point. Even better, the seller or seller's agent should have pointed it out to you during the initial views of the home, but that does not always happen. In California written disclosure documentation must be provided to the buyer upon acceptance of a purchase agreement or within 5 days. This documentation would have revealed the source of the leak, remedy if any, etc. Then you have the right to hire your own inspector to review any issues you are concerned with and present them to the seller for review and possible resolution. It would be awfully suspicious if they did not make note of this water leak on their disclosure documents when it was so evident to you.

If you cancel the contract due to this issue and/or other repairs needed that you were not made aware of prior to the purchase contact being signed or on the disclosure documents provided, then your written cancellation would warrant that the leak exists through your constructive or actual notice. If they still did not disclose it later on to the next buyer they could be held responsible for non- disclosure of a material and documented issue. Not a good thing for a seller. Now if they were to fix the leak prior to a second purchase agreement then they should still make note that the leak was recently corrected but do not necessarily have to if they are certain it is professional repaired and did not cause any long term damage. I would still disclose the fix if I were them anyway just for good measure. Hope that helps. Good luck!
1 vote
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