Does a FSBO Home Sale Require a Seller's Disclosure in Texas?
Full Question:
Answer:
It is possible that the seller to the 2006 purchasers provided them with a disclosure form, as this is required in Texas after 1993, regardless if the sale is by owner or not. It is also possible that the sellers you purchased from were unaware of the problem, and it occurred with the previous owner. I suggest contacting the previous owners to see if they were provided with a disclosure form.
Seller’s Disclosure is the disclosure made by seller to the buyer, which details all physical problems and defects of the subject matter of sale that the seller is aware of. The seller will be held liable if s/he fails to disclose any problems within his/her knowledge. However, there is no liability if the seller has no knowledge of the inherent defect of the product. Seller’s disclosure is the disclosure of seller’s knowledge of the condition of the property as of the date signed by seller. A seller’s disclosure statement is not a substitute for any inspections or warranties the buyer may wish to obtain.
Typically, liability for failure to accurately report information on the disclosure would be created for a material defect or problem not disclosed. If the seller did not have knowledge of the problem or inaccuracy, there will be no liability.
Disclosure of hazardous or defective conditions on real estate is regulated by state law. The law usually requires that potential buyers be told all material facts about the condition of a property for sale. Defects listed on a disclosure form may also include appliances, electrical system, water and sewer system, roofing, structural and foundation problems, moisture, and others. Latent defects are problems with the property that the buyer or buyer’s agent is not able to discover through a normal inspection. It is a hidden or dormant defect in a premise that cannot be discovered by observation or a reasonably careful inspection. Some states interpret latent defects to mean structural items (including foundational problems) and safety items. The disclosure laws typically require material or important defects to be disclosed. Disclosure of environmental risks, particularly the ones that pose health hazards, may also be information that must be disclosed. A leaking underground oil tank or the presence of a nearby nuclear power plant for example must be disclosed to the buyer.
The law generally does not require a seller to disclose a defect in residential property of which he is not aware. The relationship between a buyer and seller of real estate is created by contract, and the terms of the contract generally determine the rights of the buyer and seller. You should carefully review the terms of your real estate contract to determine your rights and obligations regarding defects in the property. The answer to your question may depend on whether the seller provided a disclosure form to you and if so, whether it contained required information. If the seller provided a warranty, there may be recourse through a breach of warranty claim. Also important is whether you elected to have a home inspection performed and whether that inspection revealed any problems.
Please see the information at the following link:
http://www.expertlaw.com/library/limitations_by_state/Texas.html
Please see the following Texas statute:
§ 5.008 PROP. Seller's Disclosure of Property Condition
**Update Notice: This section has been amended by
SENATE BILL No. 1969 OF 81st LEGISLATURE
(a) A seller of residential real property comprising not more than one
dwelling unit located in this state shall give to the purchaser of the
property a written notice as prescribed by this section or a written
notice substantially similar to the notice prescribed by this
section which contains, at a minimum, all of the items in the notice prescribed
by this section.
(b) The notice must be executed and must, at a minimum, read
substantially similar to the following:
SELLER'S DISCLOSURE NOTICE
CONCERNING THE PROPERTY AT _____________________________________
(Street Address and City)
THIS NOTICE IS A DISCLOSURE OF SELLER'S KNOWLEDGE OF THE CONDITION OF THE PROPERTY AS OF THE
DATE SIGNED BY SELLER AND IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE PURCHASER
MAY WISH TO OBTAIN. IT IS NOT A WARRANTY OF ANY KIND BY SELLER OR SELLER'S AGENTS.
Seller ___ is ___ is not occupying the Property.
If unoccupied, how long since Seller has occupied the Property?
1. The Property has the items checked below:
Write Yes (Y), No (N), or Unknown (U).
__ Range ___ Oven ___ Microwave
__ Dishwasher ___ Trash Compactor ___ Disposal
__ Washer/Dryer Hookups ___ Window Screens ___ Rain Gutters
__ Security System ___ Fire Detection Equipment ___ Intercom System
___ Smoke Detector
___ Smoke Detector — Hearing
Impaired
___ Carbon Monoxide Alarm
___ Emergency Escape Ladder(s)
___ TV Antenna ___ Cable TV Wiring ___ Satellite Dish
___ Ceiling Fan(s) ___ Attic Fan(s) ___ Exhaust Fan(s)
___ Central A/C ___ Central Heating ___ Wall/Window Air Conditioning
___ Plumbing System ___ Septic System ___ Public Sewer System
___ Patio/Decking ___ Outdoor Grill ___ Fences
___ Pool ___ Sauna ___ Spa
___ Hot Tub
__ Pool Equipment ___ Pool Heater ___ Automatic Lawn Sprinkler System
__ Fireplace(s) & Chimney ___ Fireplace(s) & Chimney
(Woodburning) (Mock)
___ Gas Lines (Nat./LP) ___ Gas Fixtures
Garage: ___ Attached ___ Not Attached ___ Carport
Garage Door Opener(s): ___ Electronic ___ Control(s)
Water Heater: ___ Gas ___ Electric
Water Supply: ___ City ___ Well ___ MUD ___ Co-op
Roof Type: _______________________________________________ Age: ________________ (approx)
Are you (Seller) aware of any of the above items that are not in working condition, that have
known defects, or that are in need of repair? __ Yes __ No __ Unknown.
If yes, then describe. (Attach additional sheets if necessary):
_______________________________________________________________________________________________
_______________________________________________________________________________________________
2. Does the property have working smoke detectors installed in accordance with the smoke
detector requirements of Chapter 766, Health and Safety Code? __ Yes __ No __ Unknown.
If the answer to the question above is no or unknown, explain. (Attach additional sheets if
necessary): ___________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
3. Are you (Seller) aware of any known defect/malfunctions in any of the following?
Write Yes (Y) if you are aware, write No (N) if you are not aware.
___ Interior Walls ___ Ceilings ___ Floors
___ Exterior Walls ___ Doors ___ Windows
___ Roof ___ Foundation/Slab(s) ___ Basement
___ Walls/Fences ___ Driveways ___ Sidewalks
___ Plumbing/Sewers/Septics ___ Electrical Systems ___ Lighting Fixtures
___ Other Structural Components (Describe): ___________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
If the answer to any of the above is yes, explain. (Attach additional sheets if necessary):
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
4. Are you (Seller) aware of any of the following conditions?
Write Yes (Y) if you are aware, write No (N) if you are not aware.
___ Active Termites (includes wood-destroying
insects) ___ Previous Structural or Roof Repair
___ Termite or Wood Rot Damage Needing Repair ___ Hazardous or Toxic Waste
___ Previous Termite Damage ___ Asbestos Components
___ Previous Termite Treatment ___ Urea formaldehyde Insulation
___ Previous Flooding ___ Radon Gas
___ Improper Drainage ___ Lead Based Paint
___ Water Penetration ___ Aluminum Wiring
___ Located in 100-Year Floodplain ___ Previous Fires
___ Present Flood Insurance Coverage ___ Unplatted Easements
___ Landfill, Settling, Soil Movement, ___ Subsurface Structure or Pits
Fault Lines
___ Previous Use of Premises for Manufacture
of Methamphetamine
If the answer to any of the above is yes, explain. (Attach additional sheets if necessary):
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
5. Are you (Seller) aware of any item, equipment, or system in or on the property that is in
need of repair? ___ Yes (if you are aware) ___ No (if you are not aware). If yes, explain
(attach additional sheets as necessary). ____________________________________________________
6. Are you (Seller) aware of any of the following?
Write Yes (Y) if you aware, write No (N) if you are not aware.
___ Room additions, structural modifications, or other alterations or repairs made without
necessary permits or not in compliance with building codes in effect at that time.
___ Homeowners' Association or maintenance fees or assessments.
___ Any "common area" (facilities such as pools, tennis courts, walkways, or other areas)
coowned in undivided interest with others.
___ Any notices of violations of deed restrictions or governmental ordinances affecting the
condition or use of the Property.
___ Any lawsuits directly or indirectly affecting the Property.
___ Any condition on the Property which materially affects the physical health or safety of an
individual.
If the answer to any of the above is yes, explain. (Attach additional sheets if necessary):
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
7. If the property is located in a coastal area that is seaward of the Gulf Intracoastal
Waterway or within 1,000 feet of the mean high tide bordering the Gulf of Mexico, the property
may be subject to the Open Beaches Act or the Dune Protection Act (Chapter 61 or 63, Natural
Resources Code, respectively) and a beachfront construction certificate or dune protection
permit may be required for repairs or improvements. Contact the local government with ordinance
authority over construction adjacent to public beaches for more information.
________________________ ______________________
Date Signature of Seller
The undersigned purchaser hereby acknowledges receipt of the foregoing notice and acknowledges
the property complies with the smoke detector requirements of Chapter 766, Health and Safety
Code, or, if the property does not comply with the smoke detector requirements of Chapter 766,
the buyer waives the buyer's rights to have smoke detectors installed in compliance with
Chapter 766.
_____________________ ______________________
Date Signature of Purchaser
(c) A seller or seller's agent shall have no duty to make a disclosure
or release information related to whether a death by natural causes,
suicide, or accident unrelated to the condition of the property occurred
on the property or whether a previous occupant had, may have had, has, or
may have AIDS, HIV related illnesses, or HIV infection.
(d) The notice shall be completed to the best of seller's belief and
knowledge as of the date the notice is completed and signed by the
seller. If the information required by the notice is unknown to the
seller, the seller shall indicate that fact on the notice, and by that
act is in compliance with this section.
(e) This section does not apply to a transfer:
(1) pursuant to a court order or foreclosure sale;
(2) by a trustee in bankruptcy;
(3) to a mortgagee by a mortgagor or successor in interest, or to a
beneficiary of a deed of trust by a trustor or successor in interest;
(4) by a mortgagee or a beneficiary under a deed of trust who has
acquired the real property at a sale conducted pursuant to a power of
sale under a deed of trust or a sale pursuant to a court ordered
foreclosure or has acquired the real property by a deed in lieu of
foreclosure;
(5) by a fiduciary in the course of the administration of a decedent's
estate, guardianship, conservatorship, or trust;
(6) from one co-owner to one or more other co-owners;
(7) made to a spouse or to a person or persons in the lineal line of
consanguinity of one or more of the transferors;
(8) between spouses resulting from a decree of dissolution of marriage
or a decree of legal separation or from a property settlement agreement
incidental to such a decree;
(9) to or from any governmental entity;
(10) of a new residence of not more than one dwelling unit which has
not previously been occupied for residential purposes; or
(11) of real property where the value of any dwelling does not exceed
five percent of the value of the property.
(f) The notice shall be delivered by the seller to the purchaser on or
before the effective date of an executory contract binding the purchaser
to purchase the property. If a contract is entered without the seller
providing the notice required by this section, the purchaser may terminate
the contract for any reason within seven days after receiving the
notice.
