QDEAR BARRY: As a veteran real estate agent, 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 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
ADEAR MICHAEL: It appears that you read more into my recent article than was intended. 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. This does not excuse sellers from speaking up when there is an obvious oversight or inaccuracy in the report.
Real estate disclosure is a liability mine field upon which sellers, agents and home inspectors must tread cautiously. The letter of the law, however, is not the only concern.
Transfer disclosure laws consist of 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.
We can parse the finer points of legalese and scrutinize loopholes, but what matters is that no significant information about the property be withheld. 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? If there's a lawsuit, are the sellers absolved of responsibility because they were not obligated to critique the inspection report?
The bottom line is liability exposure vs. 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.
Agents and brokers should do whatever is reasonable and prudent to minimize the likelihood of legal problems after transactions have closed. This, of course, includes counseling sellers to disclose to the max, whenever possible and without reservation.
In today's real estate environment, everyone is subject to potential assault by a vigilant army of litigious lawyers. If that were not so, the real estate purchase contract would still be one page and we would have no transfer disclosure laws.
Barry Stone is a professional home inspector. If you have questions or comments, contact him through his Web site, www.housedetective.com, or send mail to 1776 Jami Lee Court, Suite 218, San Luis Obispo, Calif. 93401.
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