Austin TX Real Estate - Hill Country Austin Lakeway Homes for Sale: Sellers Should Complete the Seller's Disclosure Notice, Not the Agent

Sellers Should Complete the Seller's Disclosure Notice, Not the Agent

I heard someone say today that a "good" agent would fill out the Seller's Disclosure Notice "for" the seller. Another person said agents should fill out the disclosure notice "with" the seller. I completely disagree with both of these statements.

The Seller's Disclosure Notice is for the SELLER to disclose what the seller knows about the property. How can I fill that out for them? Also, if I don't know pertinant facts first hand about the property, what good does it do to fill it out with them?

seller's disclosure notice selling a houseThere are several different disclosure forms in Texas and not everyone uses the same form. Some sellers disclose "water penetration" as the toilet overflowed and they mopped the floor, or called roto-rooter. Others think water penetration is a roof leak or plumbing leak or something like that. I'm not going to tell a seller what they should or shouldn't disclose if the toilet overflowed. Some buyers chuckle when they see that disclosed, while others think it's good to know to double check the plumbing. We all know there are many reasons why a toilet can overflow, and if you have kids, there are many more reasons why...

I tell my sellers to fill out the form in a way that nothing could come back to bite them in the arse. They need to let buyers know exactly what they know, period, the end. It's their responsibility, not mine.

Also, look at it this way, if I were to fill out the form in my handwriting, or just sitting there with them, and a buyer wants to sue for information (or lack there of), the seller could point all their fingers at me saying, "my agent told me this and that." NOT GOING TO HAPPEN!!


My job is to facilitate the form being filled out, but not filling it out for them. 

**Are You Packed Yet?**

donna harris Realtor Austin TX blog

Donna Harris, REALTOR®
Regent Property Group
austintexas-homesforsale.com
Donna@DonnaHomes.com
austin-texas-homes-for-sale.com

Austin TX Real Estate and the surrounding areas of Lakeway, Bee Cave, West Lake Hills, Cedar Park, Round Rock, Spicewood, Circle-C, Steiner Ranch, and everywhere in between... Hill Country Austin TX Real Estate and beyond. Whether you're buying or selling an Austin home, I'll be with you every step of the way. 

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Copyright© 2013 By Donna Harris, All Rights Reserved. You may re-blog with links back to this post.
*Sellers Should Complete the Seller's Disclosure Notice, Not the Agent
* was first published on donnahomesblog.com.

 

Comment balloon 43 commentsDonna Harris • October 31 2013 10:53AM

Comments

Donna, you are absolutely right! No way am I going to put myself in the position of taking responsibility for what is written on their property condition disclosure. I'll make sure they complete one, but that's it.

Posted by Tom White, Franklin Homes Realty LLC, Franklin TN (Franklin Homes Realty LLC (615) 495-0752 or www.FranklinHomesRealty.com) almost 4 years ago

Donna - so true. Who knows home better than the owners?

Posted by Praful Thakkar, Andover, MA: Andover Luxury Homes For Sale (eXp Realty) almost 4 years ago

I would never want to put myself in the position of notating things in the home and writing them down for the Seller.  It is just not logically right and would open up a whole bunch of risk.

Posted by Jay & Michelle Lieberman, Creating Calm in the Buying and Selling Chaos (Keller Williams World Class) almost 4 years ago

GOOD FOR YOU!!!

Agents who fill out these forms have no actual knowledge of the condition history of a property.  That's why we don't even have the disclosures for foreclosures.  The bank owners have never LIVED IN THE HOME.

 

Posted by Lenn Harley, Real Estate Broker - Virginia & Maryland (Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate) almost 4 years ago

Donna my hat is off to you.  This should never ever be filled out by an agent.  It is the responsibility of the seller.  In Washington State, all parts need to filled out by the seller.  If it is a bank owned property, it can be waived by the buyer.  If the buyer doesn't waive it, atleast the enviromental section needs to filled out.  Stay firm and make your sellers do their due diligence.  Great job!!

Posted by Terry Meyer (Berkshire Hathaway HomeServices Sound Realtors) almost 4 years ago

Over disclose is what I tell my sellers. I will type their name, address and legal description, but the rest is for them to fill out. I've sold houses that have flooded before and I have made sure the sellers disclose that.

Posted by Pam Graham, Jacksonville, Clay & St Johns Counties (All Real Estate Options) almost 4 years ago

Definitely seller needs to fill out seller disclosures, not the agent. Lenn makes a good point that on foreclosures home buyers are not provided seller disclosures because the bank never lived there. 

Posted by Pamela Seley, Residential Real Estate Agent serving SW RivCo CA (West Coast Realty Division) almost 4 years ago

I agree...

 

And then you have the agents that claim the the seller knows "nothin" because it is rental property...

All owners pay bills and know....they know when the roof leaked, or the hot water heater was replaced and what the house problems are.

Eve in Orlando

Posted by Mike & Eve Alexander, Exclusively Representing ONLY Orlando Home Buyers (Buyers Broker of Florida ) almost 4 years ago

Tom, Great, thanks!

Praful, Exactly!

Jay & Michelle, Because then in a lawsuit, the sellers say, "the agent wrote the wrong thing..."

Lenn, Thanks, and EXACTLY!

Terry, I hate being asked, "Do I have a cooktop or a range? How do I know?" I always say to just fill it out the best they can.

Pam, That's right!

Pamela, Very true.

Eve, They pay for maintenance, they pay for replacement. They know!

Posted by Donna Harris, Realtor,Mediator,Ombudsman,Property Tax Arbitrator (Donna Homes, a PLR affiliate - TexasRealEstateMediationServices.com) almost 4 years ago

Absolutely not. If you fill it out you are liable AND the seller can say "I just signed it! They filled it out, so I thought they disclosed everything I was supposed to disclose!"

Posted by Than Maynard, Broker - Licensed to List & Sell - 405-990-8862 (Coldwell Banker Heart of Oklahoma) almost 4 years ago

Bingo Donna! That's why it's called a "Seller's Disclosure" rather than a 'listing agent disclosure'. Well, not unless they would like to be held accountable for their disclosure... both to the buyer AND the seller as well. Seller's defense = "I never filled that in..." You know where I'm going with this...

Posted by Richard Bazinet /MBA, CRS, ABR, Phoenix Scottsdale Real Estate (AZuRE Team - Realty ONE Group) almost 4 years ago

Excellent advice here Donna.  I've helped answer questions on the seller's disclosure, but have never filled it out for them.  That's against the rules too!  

Posted by Amanda Christiansen, Christiansen Group Realty (Christiansen Group Realty (260)704-0843) almost 4 years ago

Glad to see all comments are on the same page. The agent takes on a huge liability when they put pen to the disclosure. 

Posted by Larry Riggs, GRI, SRS Your Frederick County Specialist (Re/Max Plus) almost 4 years ago

You're correct, Donna. This is completely up to the sellers. If sellers are unsure about if should include something, I always tell them 'Disclose everything, and let the buyer decide whether or not it is a significant issue.'

Posted by John Novak, Henderson, Las Vegas and Summerlin Real Estate (Keller Williams Realty The Marketplace) almost 4 years ago

I agree that a disclosure form should definitely be completed by the home owner's.  How are we suppose to know what goes on in the house year in and year out.

Posted by Morgan Evans, LICENSED REAL ESTATE SALESPERSON (Douglas Elliman Real Estate) almost 4 years ago

Hi Donna. I concur with this. The agent should never ever fill it out for obvious and not-so-obvious reasons.

Posted by Lana Robbins Realtor ® Licensed Real Estate Broker, Licensed in Florida and Washington (Aloha Kai Real Estate) almost 4 years ago

Completely agree.  When one is provided in our MLS or in a brochure in the home I don't send one.  Recently I made an offer on a home where via email the agent had told me of a problem with the septic system.  I requested the seller disclosure immediately but we didn't get the property so never did see what the disclosure said.

Posted by Cindy Jones, Pentagon, Fort Belvoir & Quantico Real Estate News (Integrity Real Estate Group) almost 4 years ago

I tell my sellers to fill out the form in a way that nothing could come back to bite them in the arse. 

Posted by Brad MacKenzie, Turning Houses into Homes on the South Shore (Brad MacKenzie) almost 4 years ago

New Hampshire has disabled the ability for an agent to type in information.  This is because it is the seller who has first hand knowledge about the house and not the agent.

Posted by Joan Whitebook, Consumer Focused Real Estate Services (BHG The Masiello Group) almost 4 years ago

Donna, you are so correct.  This is one area where I put a lot of emphasis on with my sellers and tell them to over disclose whenever possible.  Say something happened (if it did) and what you did to fix/correct it (if you did).  If you did not fix it just disclose something happened.  It is one of the biggest areas for lawsuits and I think can be improved with over disclosure.

Posted by Kelly Young, Colorado Springs Real Estate ~ 719-226-0126 (The Platinum Group Realtors) almost 4 years ago
Sellers are supposed to fill out the seller's disclosure not agents. Duh! The listing agent who says otherwise doesn't know what he or she is talking about.
Posted by Rosie Moore (Serving Sugar Land, Richmond, Rosenberg, Missouri City) almost 4 years ago

If Oklahoma we have had a sellers property condition disclosure law since 1995. For an agent to fill this out has been a violation of the law for 18 years. Simple as that.

Posted by Joe Pryor, REALTOR® - Oklahoma Investment Properties (The Virtual Real Estate Team) almost 4 years ago
Good for you, I agree - the form states Sellers, not Agents...
Posted by Graziella Bruner, Broker/Owner - Serving Wayne & Oakland County (BRUNER REALTY LLC) almost 4 years ago

I couldn't agree with you more when you say, "I tell my sellers to fill out the form in a way that nothing could come back to bite them in the arse."

Posted by Myrl Jeffcoat, Greater Sacramento Real Estate Agent (GreatWest Realty) almost 4 years ago

Donna, you make many excellent points as to why sellers alone fill out the Seller's Disclosure Notice; I agree.

Posted by Ralph Gorgoglione, Hawaii and California Real Estate (800) 591-6121 (Maui Life Homes / Metro Life Homes) almost 4 years ago

Donna,

It's been beaten into our heads not to fill out the disclosure. I try not to even touch it.

Rich

Posted by Richard Iarossi, Crofton MD Real Estate, Annapolis MD Real Estate (Coldwell Banker Residential Brokerage) almost 4 years ago

It's called a Seller's Disclosure for a reason!  The seller definitely should be the one filling it out - they have the history; no one else does.

 

Posted by Kat Palmiotti, The House Kat (Grand Lux Realty, 914-419-0270, kat@thehousekat.com) almost 4 years ago

Yes... it is the seller's responsiblity to fill out a form. But I often actually sit with them while they do it, so I can answer questions, get a feel for how "honest" they are being, make sure they understand the implications of not being totally honest. But I also get to know and understand more about a house when I do it this way, even though it might take an extra 30 minutes of my time.

Posted by Nina Hollander, Your Charlotte/Waxhaw/Fort Mill Area Realtor (RE/MAX Executive | Charlotte, NC) almost 4 years ago

Donna,

I could not agree more.  Advise them to be honest, answer all the questions, and if you even need to think about it disclose.

Posted by Richard Weeks, REALTOR®, Broker almost 4 years ago

Some unfortunate agents will learn in court why they shouldn't have helped write the sellers disclosure.

Posted by Brian Schulman, Lancaster County PA RealEstate Expert 717-951-5552 (Coldwell Banker Residential Brokerage, Lancaster PA) almost 4 years ago
Donna, We agree! It is not our place to get involved with what the seller places on the disclosure form. Nor to coach them in doing so.
Posted by Bill and MaryAnn Wagner, Jersey Shore and South Jersey Real Estate (Wagner Real Estate Group) almost 4 years ago

Good advice for agents. I give sellers the discosure form at the initial appointment and explain that it is important to fill it out accurately.

Posted by Gita Bantwal, REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel (RE/MAX Centre Realtors) almost 4 years ago

Donna, you are absolutely correct!! I used to teach this in my CE classes. Agents should think about the liability should they fill out the form.

Posted by Michael Setunsky, Your Commercial Real Estate Link to Northern VA almost 4 years ago

Exactly Donna. If a seller has a question about whether or not something should be disclosed, then as an agent you can speak up.

Posted by Suzanne Otto, Your Montgomery County PA home stager (Six Twenty Designs) almost 4 years ago

I'm so happy to see that no one is saying something different or giving examples of how they filled it out "just one time"...

Posted by Donna Harris, Realtor,Mediator,Ombudsman,Property Tax Arbitrator (Donna Homes, a PLR affiliate - TexasRealEstateMediationServices.com) almost 4 years ago

I size up my seller to see if they can do it. Sometimes those real estate docs are intimidating. If they cant, I will ask the questions and mark them...

Posted by Richie Alan Naggar, agent & author (people first...then business Ran Right Realty ) almost 4 years ago

Richie, Right when I said that I was happy to see no one fills it out for the sellers, the very next comment is you saying you will fill it out for them.  BAD! Please don't do it. You can be held to so much liability. You might be able to say that you only wrote what they told you, but they can turn around and say they didn't tell you to write that.

Posted by Donna Harris, Realtor,Mediator,Ombudsman,Property Tax Arbitrator (Donna Homes, a PLR affiliate - TexasRealEstateMediationServices.com) almost 4 years ago

In California it's illegal for us to fill out the seller disclosure forms (two forms called TDS and SSC).  We're able to explain the forms and help the client with questions regarding them but we can't fill them out.

Posted by Bryan Robertson, Broker, Author, Speaker (Intero Real Estate) almost 4 years ago

I am willing to answer questions if something is confusing to a seller, but that is it.  In the end, the listing contract for our area states that the seller holds the broker and the agent harmless from the information disclosed in the seller property disclosure.  That puts the responsibility straight onto their shoulders and off of mine.  When they ask me if they SHOULD disclose something, I ask them this:  If you were buying the house, would you want to know?  That gets them thinking.  Thank you for sharing!

Posted by Karen Feltman, Relocation Specialist (Cedar Rapids/Iowa City, IA Lepic-Kroeger REALTORS) almost 4 years ago

A word to the wise is sufficient...I shall come around to this thinking and fill no more...thank you

Posted by Richie Alan Naggar, agent & author (people first...then business Ran Right Realty ) almost 4 years ago

Donna, like most here, I agree with you.  

The seller forms are for sellers to fill out.  We in California have form that the agent is to fill out (Agent Visual Inspection Dislcosure) that is speciifcally designed for the agents.   

By filling out the disclosure for the sellers when they have never lived in the property, the agent is simply  inviting liability.  The agents wanting to fill out the disclosures for their sellers should ask their brokers and their attorneys how they feel about that practice.    

 

Posted by Steve Mun, Silicon Valley Realtor (Keller Williams Silicon Valley) almost 4 years ago

Donna-It's hard to believe something so simple and straightforward could be confusing or open to any interpreation than yours.

Posted by Wayne Johnson, San Antonio REALTOR, San Antonio Homes For Sale (Coldwell Banker D'Ann Harper REALTORS®) almost 4 years ago

I agree completely.  I would work the word "fraud" in here some place if I had one of the MD 4 page Maryland Property Condition Disclosure/Disclamer in front of me. 

One thing for sure.  The owner/sellers don't need any help.  I've never seen one that I trusted, especially after viewing a home for sale. 

Posted by Lenn Harley, Real Estate Broker - Virginia & Maryland (Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate) almost 4 years ago

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