Should sellers disclose former defects?

Q: Before listing my home for sale, I hired a home inspector and repaired all of the defects that were listed in the inspection report. Am I required to disclose previous defects to buyers, or are past problems exempt from disclosure requirements once they have been fixed?

A: If the world were uncorrupted by legal madness and chronic faultfinding, the answer would be, "No problem, Joe. Just repair the defects and move on with your life." Unfortunately, armies of tort practitioners, wielding the jagged edge of the law, have redefined the meaning of seller disclosure, extending its practical limits to beyond infinity, replacing common sense and straightforward disclosure with uncertainty, fear and distrust, while abolishing the reasonable expectation that bygones can ever be bygones.

In the cold shadow of potential legal consequences, the answer to all disclosure uncertainties is simple: When in doubt, disclose. Even a repaired condition can pose future liability if a homebuyer discovers the repair history of the property and is then advised you should have disclosed that information.

The best defense against future liability and possible courtroom drama is to disclose everything. It is unfortunate that we must be so cautiously defensive, but such is the result of endless civil liability lawsuits. (However, in all fairness, it should be noted that a mere 92% of all tort attorneys give the rest a bad name.)

In the final analysis, you can never be sue-proof, but the more you disclose, the better your odds.

Q: The home we are buying has an added bedroom that was built without a permit. This was disclosed by the sellers, and we're worried that this could cause legal problems in the future. The attitude of the sellers seems to be "take it or leave it." Should we insist they obtain an after-the-fact building permit, or should we take our chances on an as-is purchase?

A: The safest approach is to know what you're buying before you buy it. Problems may or may not arise from a non-permitted addition, but the potential for future consequences should not be dismissed. To ensure against future surprises, the wise approach is to apply for an as-built permit from the local building department.

If the addition is reasonably well constructed, the building inspector will probably find a few conditions that warrant upgrade. Once repairs are made, the inspector will sign off on the addition, and further uncertainties will be eliminated. The inspector, however, may find a long list of major and/or minor defects in need of correction, which could require costly repairs before the work is approved.

Worst-case scenario would be that the inspector disapproves the addition entirely and requires that it be removed. In that case, you would be thankful for having insisted on a permit before purchasing the property.

• To write to Barry Stone, visit him on the web at, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.

© 2021, Action Coast Publishing

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