Listed or Not - You Must Disclose Material Facts!

Disclosure Q&A - The Law doesn't exempt FSBO's

Q.  I was going to list my home with a real estate agent, but I was told that I'd then have to let buyers know about the water problems in my basement.  If I sell it on my own, I don't have to do a disclosure, right?

A. One important thing that For Sale By Owners often forget, and traditional sellers too, is the rule of disclosure.  By law, you have to disclose something of material fact about the property.  That means that if you KNOW something is wrong with the house or area, you can't just hide it.   As a Realtor®, we also have to disclose material facts about the home.  

Sometimes, a seller thinks that since if he tells his agent and we HAVE to tell a buyer, they can get around this by either not telling their agent, or selling the home themselves.  But this is just not true.   Yes, you might get away with not telling this, in either case.  However - should the fact be discovered during the transaction or even in the future after it's closed and changed hands, you could be sued beyond your wildest dreams for non-disclosure of a material fact.   And that's really not fun.  While Kansas does not have a specific statute addressing this in a real estate transaction, it is covered under the Kansas Consumer Protection Act, which can be found in statutes Ch 50, Article 6, and various statutes addressing fraud and fraud by silence.

Often, it's found during the listing period - agents are generally trained and attuned to spot signs of trouble for their buyer clients.  We are not experts, but long experience and training has taught us red flags to point out for further research.   Homes are also subject to a home inspection, during which a buyer can bring in numerous experts and check things out.    Even if the defect is not uncovered during all this, that does not mean you are excused!  

What's considered a material defect/fact about the property?  
Anything that would affect the value or possibly affect the value of the home.  

This includes things like leaks, broken items, cracks, recurrent water problems, frequent wind damage, particular dangers in a neighborhood such as landfills, water contamination, EMF fields, etc.  The best thing to do is fill out that property disclosure form and fill it out fully, to the best of your knowledge, hiding nothing.

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