Apr. 3, 2007
In Virginia a seller can choose whether than provide the would-be buyers with a property disclaimer or a property disclosure. I say "in Virginia" because this is fairly unique in the real estate world. In most states a disclosure statement is a must.
So, what are these two documents and what do they mean to you as either a buyer or a seller?
The property disclosure is a document that goes through all the major systems of your home and asks you what you know about them. It asks about problems you've encountered and fixed, the age of certain items, etc. While it is not an exhaustive inventory of everything connected with your home and the history of each item, it certainly can provide a substantial amount of information.
The property disclaimer is a much shorter document. Just about the only actual information it provides is whether or not the property is in a historic district. As far as the condition of the house goes the disclaimer says that the owner makes no representation as to the condition of the home. In a nutshell, it says the buyer is on his own.
The vast majority of sellers in Virginia elect to use the property disclaimer. And that's not entirely surprising. It requires less work on the seller's part, certainly. Check whether or not the property is in a historic district and sign your name! You're done! No need to rack your brain on when it was that you had the air conditioning unit replaced.
The other reason I'm frequently given for not using the property disclosure is that people are afraid of being sued over an honest mistake. While I've never personally seen a lawsuit based on a mistake on a disclosure, it's hard to argue that in our litigious society someone, somewhere, someday might not be tempted to sue. I'm not a big fan of fear-based decision making but it is a big factor in why most people choose the disclaimer.
One instance when I would definitely suggest a disclaimer makes more sense is when you are selling a home you do not occupy. If, for example, it's an investment property that's been rented out, the odds are you don't know everything that's going on with the home. It's best not to guess. And, even if you moved out two months ago, houses do not stay the same over time! Again, this is a good time to use a disclaimer.
If you're a buyer and see a disclaimer, I wouldn't assume that something's wrong with the house. Clearly there are a lot of sellers using disclaimers for reasons that have nothing to do with the condition of the property. However, if you do happen to run across one where the owner has used a disclosure I think it's potentially worth assigning some extra weight to that fact.
What have your experiences been with disclaimers and disclosures? If you moved to Virginia from elsewhere in the country were you surprised at the lack of mandatory disclosures here?