TWO Duties to Disclose: Owner’s . . . and the Agent’s
[Editor’s Note: The views expressed here are solely those of Ross Kaplan, and do not represent Edina Realty, Berkshire Hathaway, or any other entity referenced. If you need legal advice, please consult an attorney.]
At least in Minnesota, it’s permissible for Sellers to tell Buyers nothing at all about the home they’re selling.
Called a “waiver,” that’s an alternative to: a) completing the standard Minnesota Seller Disclosure; or b) hiring a qualified third-party** to do a home inspection (and yes, Sellers should expect Buyers to discount for buying “as is”).
Pre-Closing Confessions
But, Sellers opting to waive their disclosure need to be consistent.
So, if the Seller isn’t telling Buyers anything about the house, they don’t have an obligation to later report that something broke.
Or flooded.
Or leaked.
Or was damaged in a storm.
You get the idea . . .
“You Don’t . . . But I Do”
The catch for Minnesota listing agents, representing such Sellers?
They have their own, independent (and non-waivable) duty to disclose any material facts that they’re aware of.
The upshot: if a waiving Seller asks their agent whether they have to disclose that the basement filled up with a foot of water after the previous night’s deluge, the legally (if odd) correct answer is, “you don’t . . . but now I have to.”
As you might expect, a little listing agent — Seller counseling on this subject, early on, goes a long way.
P.S.: Just so you don’t think Buyers purchasing “as is” are completely unprotected: if there’s any material change to the property prior to closing, they have the option of backing out of the deal.
**Hiring a qualified third-party inspector does NOT let Minnesota Sellers simply keep quiet about problems they’re aware of.
Instead, they’re required to “disclose to prospective Buyer material facts known by Seller that contradict any information that is included in a written report, or material facts known by Seller that are not included in the report.”
Call it, a duty to correct both errors of omission and errors of commission.
