Dear Barry,

When we purchased our home, the seller filled out a Transfer Disclosure Statement (TDS), supposedly reporting everything that was wrong with the property. Aside from disclosing a ceiling stain in one of the closets, this form told us nothing. So we purchased the property with that understanding. After moving in, we found an endless array of plumbing and electrical problems, with repair costs exceeding $15,000. So please tell me, of what legal value is the TDS form? – Richard

Dear Richard,

Most states have laws that require sellers to disclose undesirable property conditions. This includes any known defect, whether it is physical damage, roof or plumbing leakage, inoperability of a component or appliance, or any condition that could adversely affect a prospective buyer’s interest in the property. Compliance with this requirement compels every seller to fill out a standard disclosure form, declaring all unfavorable conditions. Unfortunately, reliance upon this form as a conveyance of complete and accurate information is based upon two erroneous assumptions: 1) That property owners are fully aware of conditions that warrant disclosure; 2) That all property owners are willing to disclose known defects.

Little comment is needed regarding group 2. These are the societal bottom feeders, the practitioners of compromised ethics, most of whom regardless of apparent age are overdue for parental or litigious spankings.

Group 1 consists of those sellers who are unaware or unsure of what conditions to disclose. In short, they include nearly everyone who has ever sold a house. The primary reason for this universality is that all homes have at least one defect that is completely unknown to the owner. It might be a wiring violation in the breaker panel, a cracked framing strut in the attic, a separated chimney fitting, a drain leak under the house, missing screws at flue pipe fittings, or a fire safety violation. The list is endless and is the primary reason why home inspections, not TDS forms, are the essential avenue of disclosure for home buyers.

The primary benefit of TDS disclosures is that they may note conditions not usually discovered by home inspectors. For example, an honest seller might disclose that the added bedroom was built without a permit, that the main sewer line becomes clogged with roots from time to time, or that winter flooding occurs in the basement every few years. Aside from this, most TDS forms are items of little substance, offering an occasional gem, but by no means a reliable source of disclosure information.

Dear Barry,

The house I’m buying had a previous purchase offer, but the deal fell through. When I asked my agent for a copy of the previous home inspection report, he said I was not entitled to a copy. How can they withhold this information? – Nancy

Dear Nancy,

The inspection report is the legal property of the previous buyers. Therefore, you might not be entitled to a physical copy. However, the agents, brokers, and sellers are required to disclose every property defect of which they are aware. If they read the old inspection report, then every item in that report is part of their knowledge, and it is now their legal responsibility to disclose all of that information. If they are not willing to do this, they are in violation of state disclosure laws. But regardless of what they do or do not disclose, be sure to hire you own home inspector; the most qualified one you can find.

To write to Barry Stone, please visit him on the Web at www.housedetective.com.

***

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