Disclose, or not to Disclose, that is the question…

Disclosure related matters are an issue we deal with on a reoccurring basis.  Years ago the Florida Supreme Court ruled that if a seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose.  Many times Realtors are put in a position of compromise when a seller knowingly wants to conceal a property related issue.  For the most part this issue rears its head either after inspection or post-closing.  However, there are times prior to the execution of the listing agreement a Realtor has to make a decision as to whether he/she can proceed with representation.

Paragraph 5 (“Sellers Obligations”) of the Florida Association of Realtors Exclusive Right of Sale Listing Agreement (“Listing Agreement”) requires the seller to disclose known matters that materially affect the property’s value (and are not readily observable or known to the buyer).  In the event a seller discloses an issue to a Realtor but yet does not want that Realtor to communicate the issue either in the Listing Agreement or otherwise (and the Realtor obliges) the Realtor has now assisted the seller in its quest to conceal the truth.  Often times the buyer will seek restitution from the seller and on occasion from the brokerage and/or Realtor.

We understand that there exist many illegal non-conforming properties out there.  In those cases, it still is prudent to disclose the non-conforming aspect of the property but require the buyer to perform its own inspections to determine the extent of the non-conformity.  Often times we counsel Realtors/sellers on the proper language to use when disclosing non-conformities.

In our opinion it is always advisable to disclose a known issue to a prospective buyer to avoid post-closing liability.  A Sellers Disclosure will not only provide a buyer with a synopsis of material issues that should be disclosed, but it will also help buffer possible post-closing liability to the Realtor and brokerage.  Many times attorneys, Realtors, and/or buyers treat properties lacking Sellers Disclosures as a huge red flag and generally proceed cautiously to closing.  If a seller puts you in a compromising position and will not allow disclosure, we believe you and your brokerage are susceptible to a claim by the buyer if representation continues.  As always, should you have any questions in regards to the foregoing, please contact your local real estate attorney.

Sincerely,

Berlin-Patten, PLLC

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com

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1819 Main Street, Suite 1000, Sarasota, FL 34236   P (941) 954-9991  F (941) 954-9992

VENICE

100 W. Venice Avenue, Suite A, Venice, FL 34285  P (941) 955-9991  F (941) 953-9992

LAKEWOOD RANCH

8130 Main Street, Suite 206, Lakewood Ranch, FL 34202   P (941) 907-9022  F (941) 907-9024

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