WHAT MUST THE SELLER DISCLOSE?

The old rule in the English and American common law was caveat emptor (let the buyer beware.)  Under this rule, as long as a seller did not commit fraud, he or she did not have to disclose any information about property for sale.

This rule has been altered extensively in California.  If you are selling residential real properties, with one to four units, California law requires you to fill out a number of transfer disclosure forms.  California Civil Code Section 1102.6.  In some counties, there are also local disclosure requirements.  California Civil Code Section 1102.6a.

These rules are very specific.  The simplest way to comply with them is to use a licensed and qualified real estate broker when selling your property.  If you are selling your own property, without using a broker, you need to obtain a complete set of the disclosure forms.

These disclosures are not required in sales, which are described in California Civil Code Section 1102.2.  Most of the exceptions set out in this statute relate to court-supervised and/or involuntary transfers,  such as transfers ordered by the probate court, foreclosures, eminent domain and transfers resulting from a decree of specific performance.

While the law is aggressive in requiring disclosures, it is less aggressive in punishing failures to disclose.  California Civil Code Section 1102.13 provides that real estate sales contracts shall not be invalidated solely due to failure to comply with the disclosure requirements.  Instead, the only sanction provided by the statute to the seller is that the buyer shall recover all of his or her actual damages for non-disclosure.

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