Heritage Law Group
The failure to disclose material facts about a home is perhaps the biggest complaint that triggers disputers between sellers and buyers.
California law requires a seller to disclose all material facts concerning a home to a buyer. As a matter of fact, California law provides that a seller must complete and provide to a buyer a
Transfer disclosure statement (known as a "TDS") addressing issues about a home known by a seller. While there are exemptions from this legal requirement such as the sale of a home by a person carrying out his or her duties as the administrator of an estate going through probate, the TDS is used in most residential sales.
The TDS is designed to elicit information about a home that might not be discovered in a termite report or a property inspection report, which are typical reports that a seller might provide to a buyer. For example, a homeowner may have attempted to fix a settling problem that has caused the floors to the slope by placing jacks underneath the crawl space to attempt to re-level the home to correct the sloping. This information must be disclosed to a prospective buyer.
While this seems like an obvious matter that would need to be disclosed since, in the above example, the homeowner has personally taken corrective action to fix a perceived problem and would certainly be aware of his or her own actions, some of the questions on the TDS can be a bit tricky. For example, one question in the TDS asks a seller if the seller is aware of any neighborhood noise problems or other nuisances. An ongoing battle between a seller over the location of a common fence, an issue between neighbors regarding the right to cross over the property of the seller by a neighbor, the location of a nearby fire station or halfway house for recovering drug addicts may all be matters that should be disclosed.
The measure of what should be disclosed is anything of a material nature that might affect the buyer's decision to purchase the property. This can be a difficult concept to deal with for many people, the better approach for most sellers is to think about all the things that the şeller has done or had someone else do work to the home and simply list those as an attachment to the TDS.