So, you just made an offer on your dream home and are now lying awake at night wondering… “What if there’s a big problem with the house that I missed?” Well, it may help to know that Washington State requires sellers of residential real property to thoroughly disclose material facts on a form called the Residential Real Property Disclosure Statement (often referred to as Form 17). Unless the buyer has expressly waived their rights, the seller must deliver this completed disclosure with 5 days after mutual acceptance. The buyer then has a window of time to walk away with their earnest money at their discretion.
While sellers have always been required to disclose material facts, the Form 17has been required by law (RCW 64.06.020) since January 1, 1995. It has undergone ten revisions since its inception, the last of which will go into effect in January. In addition to the residential disclosure, the state added an unimproved property (land) disclosure in 2007 (RCW 64.06.015) and a commercial property disclosure in 2012 (RCW 64.06.013). The current form is 6 pages long and includes most of the typical property issues requiring disclosure with a catchall question for anything left out.
Is every seller required to complete this form? Are there exemptions?
The statute allows very limited exceptions RCW (64.06.010) to completing the disclosure statement. They include transfers…
- by foreclosure or deed-in-lieu of foreclosure
- that are gifts to a parent, spouse, domestic partner, or child
- related to marital dissolution or dissolution of a state registered domestic partnership
- to buyers who had a prior ownership interest in the property in the last two years
- of an interest that is less than fee simple
- made by the personal representative of the estate or by a trustee in bankruptcy
- in which the buyer has expressly waived the receipt of the seller disclosure statement
However, if the answer to any of the questions in the section entitled “Environmental” would be “yes,” the buyer may not waive the receipt of the “Environmental” section of the seller disclosure statement.
What happens after delivery of the disclosure statement?
The buyer has three business days from receipt of the disclosure statement to cancel the agreement for the purchase of the property (unless they waived their rights to do so in writing).
This right to rescind is statutory, and the decision to revoke the offer may be made by the buyer at the buyer’s sole discretion. If the buyer elects to rescind the agreement, the buyer must deliver written notice of rescission to the seller within the three-business-day period.
Upon delivery of the written rescission notice the buyer is entitled to immediate return of all earnest money deposits and the agreement for purchase becomes void.
If the buyer does not deliver notice the disclosure statement is deemed approved and accepted by the buyer. The full provisions of this right are found in RCW (64.06.030).
What happens if the seller doesn’t deliver a completed disclosure?
If the seller fails or refuses to provide a disclosure statement to buyer within 5 days, the prospective buyer’s right of rescission extends until the earlier of three business days after receipt of the disclosure statement or the date the transfer has closed (unless the buyer has otherwise waived the right of rescission in writing). After closing, per RCW 64.06.040 (3) the seller’s obligation to deliver the disclosure statement and the buyer’s rights and remedies related to it terminate.
Some sellers are more forthcoming than others…
When sellers claim there are no issues to explain, you should be wary…very wary. In 34 years of practice, I have yet to see a perfect house. Whether a 10-million-dollar estate, a newly constructed home, or a $300,000 starter home, every house has a story and every buyer has a right to know about it so they can knowledgeably complete their due diligence.
Making full disclosure actually benefits the seller, too. By disclosing a condition, the seller shifts the burden of investigation to the buyer under Washington law. By remaining silent, a seller risks the appearance of concealment and a lawsuit. Think of it this way: disclose an issue and if the buyer accepts it you move forward with no worries since they are barred from seeking compensation later; fail to disclose it and you could be looking over your shoulder for years.
I like to see issues disclosed on a disclosure statement. It makes me feel like the seller has been honest and transparent. When I see a “perfect” disclosure, I know the seller is either in total denial or has decided not to disclosure the little (or big) issues they know about. Most buyers expect far more disclosure from the seller than the law requires. While sellers don’t have a duty to inspect their home or look for defects, they do have a duty to disclose defects that affect the value, physical condition, or title to the property. Sellers should consider disclosure to be a form of insurance.
Instead of minimizing disclosures, a prudent seller will try to consider the property from the perspective of a buyer and then disclose what a buyer would want to know. Many of the conditions that lead to lawsuits would have been acceptable to the buyer if they had been disclosed in advance. Other conditions simply are not important enough to the buyer to fully investigate before purchasing a property. To maximize the benefit of disclosure law, sellers may want to make full disclosure of the property and neighborhood even if they have no legal duty to do so. It is usually better to be over-insured than not insured at all.
Buyers have duties, too…
In addition to a thorough inspection, investigating issues raised in the seller disclosure statement is one of the most important parts of due diligence in a real estate transaction. Buyers have a duty of thoroughness and inspection that should not be taken lightly.
The buyer should evaluate each disclosed item, and (especially) those items not disclosed, but easily discovered during a walk-through and inspection. If there are many items identified and not disclosed, a buyer should be concerned about other unseen issues that might also not be disclosed. A savvy buyer will investigate a home with limited disclosure more thoroughly and/or make the decision not to purchase form a seller who is seemingly not transparent with the truth.
It is also important to note that sellers typically have no duty to disclose neighborhood conditions or past events at the property, even though these may be issues of concern to the buyer. For instance, sellers usually have no legal duty to disclose the following conditions either at the property or in the neighborhood:
- Death, murders, suicides, rapes or other crimes
- Ongoing criminal or gang activity in the neighborhood
- Registered sex offenders in the neighborhood (RCW 64.06.021)
- Future development in the area
- Political or religious activities in the area
If these or similar matters are of concern, buyer should conduct their due diligence prior to submitting an offer or include an inspection and “Neighborhood Review” contingency in the offer to allow them time to complete it as part of their purchase agreement.
What is the seller’s responsibility after delivery of disclosure statement?
The disclosure statute (64.06.040) states that if after delivering a completed disclosure statement, the seller learns from a source other than the buyer or others acting on the buyer’s behalf such as an inspector of additional information or an adverse change which makes any of the disclosures made inaccurate, the seller shall amend the real property transfer disclosure statement, and deliver the amendment to the buyer. The buyer then has the right to rescind the purchase agreement within three business days after receiving the amended disclosure statement.
No amendment is required if the seller takes whatever corrective action is necessary so that the accuracy of the disclosure is restored, or the adverse change is corrected, at least three business days prior to the closing date.
The seller disclosure statement is not a warranty
RCW 64.06.050 says the seller shall not be liable for any error, inaccuracy, or omission in the disclosure statement if the seller had no actual knowledge of the error, inaccuracy, or omission. This includes disclosures based on information provided by public agencies, or by other persons providing information within the scope of their professional license or expertise, including, but not limited to, a report or opinion delivered by a land surveyor, title company, title insurance company, structural inspector, pest inspector, licensed engineer, or contractor. This applies to the seller’s real estate broker as well.
This should give a conscientious seller the assurance that the statute provides for property disclosure only and is not a warranty of current or ongoing condition. Provided a seller discloses everything they know, or that a reasonable seller should have known, about their property, a seller should feel good in knowing they are not held liable for its condition.
Here are a few great online resources to add to your knowledge base:
Current local Form 17 Real Property Transfer Disclosure Statement: https://windermeremicom/files/2019/08/17_SellerDisclosureForm.pdf
The complete text of the Washington State Real Property Transfer Act: https://app.leg.wa.gov/RCW/default.aspx?cite=64.06&full=true
Of course, nothing tops having an experienced pro to guide you through the process. They’ve seen hundreds upon hundreds of homes and can help you identify the solid finds from the duds with gorgeous looking veneer.
Choosing the right broker can save you thousands on your home purchase. Whether through local market knowledge and pricing analysis allowing you to make a smarter offer, recommendations and resources to thoroughly conduct your due diligence and avoid costly mistakes, or savvy contract negotiation to help you get the terms you need, having a Windermere broker on your side is an advantage you can’t afford to sacrifice.
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© Copyright 2019. Information and statistics derived from Northwest Multiple Listing Service.