Whether you are buying or selling a home, it is important to have disclosures outlined for the condition of the house. Disclosing the state of parts or systems of the home allows everybody to be informed and helps protect against future potential lawsuits. Here is what you need to know.

For the purposes of this article, it is geared toward sellers, but buyers can use this information just as well so they know what to look for.

Also, this article contains information that is publicly available. If you have specific questions, ask your real estate agent or real estate attorney for clarification.

Federal, state, and local requirements

Sellers must follow all federal, state, and local disclosure laws when selling their home. The most important federal regulation is the lead-based paint disclosure. If the home was built prior to 1978, you must disclose the status of lead-based paint in the home, along with an EPA pamphlet. This applies to if the home previously had lead-based paint and has had it professionally removed.

State, county, and local laws vary, but the most common disclosures are

• Pest infestations
• Mold
• Water leaks
• Smoke/water/fire damage
• Structural issues
• Death in the home
• Environmental hazards

Check with the city you are buying/selling in to get a list of required disclosures.

Idaho has the following mandatory disclosures

As spelled out in Idaho Code section 55-2508, sellers must fill out a property condition disclosure form. This standard form allows for sellers to be as transparent as possible with what is included in the sale, how it will be transferred, and if there are any barriers to transfer.

Here are the 9 sections in the disclosure, simplified from legal-ese for a blog post.

1. Is the property located in a city or adjacent to a city such that it could be annexed into that city?
2. If the property is not within city limits, does it receive services from the city, making it legally able to be annexed?
3. Does the property have written consent to annex that is recorded by the county recorder?
4. List which appliances are included in the sale and are in good working order. (The list is on the form and in the law)
5. Specify problems with the following systems in the house
   1. Basement water
   2. Foundation
   3. Roof condition and age
   4. Well
   5. Septic
   6. Plumbing
   7. Drainage
   8. Electrical
   9. Heating
6. Describe any problems that may affect the ability to clear the title check
7. Hazardous materials & pest infestation disclosures
8. Disclosure of additions or alterations without a permit
9. Disclosure of any other problems of any type that weren’t covered by the above 8 sections

What happens if the property disclosures are inaccurate?

If problems with the home are not disclosed by the seller in writing and the problems are discovered by the buyers after the sale, the seller could be liable for the damages. The Idaho law statute says:

“No transfer, subject to this chapter, shall be invalidated solely because of the failure of any person to comply with any provision of this chapter. However, any person who willfully or negligently violates or fails to perform any duties prescribed by any provision of this chapter shall be liable in the [dollar] amount of actual damages suffered by the transferee.”

If a problem was fixed, should it be disclosed?

YES. Keeping accurate records as far back as possible helps transparency and helps avoid legal troubles—before and after the sale. For example, if you (the seller) had an issue with mold and had it remediated, this must be disclosed. This way, the buyers would know about the home’s history and who fixed the problem. If the mold comes back after the sale, the buyers (now owners) can call the mold company to fix the problem again. This is the same reason why there needs to be a lead-based paint disclosure, even if the paint was removed, as stated above.

If you are unsure, talk to your REALTOR

If you are ready to sell your home and have questions about property disclosures, ask your local real estate agent for assistance. Using a local RELATOR from a locally-based real estate company will benefit you because they know the local market as well as local and state laws. They can also refer you to a local real estate lawyer who is better in tune with the local laws than a lawyer at a national or regional firm. 

If you are unsure what may or may not need to be disclosed, get a pre-sale home inspection. This way you will know what needs to be fixed and what to disclose. Potential buyers will like the transparency of seeing that an inspection was recent, as well as recent repairs.