Most states require sellers to disclose known material facts about condition, and actively concealing a defect creates liability almost everywhere. An as-is sale generally removes the obligation to repair, not to disclose. When uncertain whether something is disclosable, disclose it.
Sellers decide what to reveal based on what might hurt the sale. The useful question is what they are obliged to reveal, and what happens if they do not.
Most disclosure conversations happen the wrong way round. A seller decides what to reveal based on what they think will hurt the sale, when the useful question is what they are obliged to reveal and what happens if they do not.
Disclosure obligations vary considerably by state and this is general information rather than legal advice. Anyone with a specific question should ask their agent and, where the answer is not obvious, an attorney.
Most states require sellers to disclose known material facts about a property's condition. Material generally means something a reasonable buyer would consider important in deciding whether to buy or what to pay.
Some states impose extensive statutory forms covering condition, history and known defects. Others require considerably less. Almost everywhere, actively concealing a known defect creates liability regardless of what any form requires.
The exposure does not end at closing. Buyers who discover an undisclosed known defect afterward have remedies, and litigation over disclosure is among the more common post-closing disputes.
Assuming a repair erases the history. A problem that was fixed may still be disclosable, particularly if it recurred or if the repair was partial. Disclose the issue and the remedy together.
Not disclosing because it seems minor. Materiality is judged by what a buyer would consider important, not by what the seller found tolerable.
Verbal disclosure. Telling an agent or a buyer something is not the same as recording it. If it is not written down, it is one person's word later.
Assuming an as-is sale removes the obligation. As-is generally means the seller will not make repairs. It rarely means they need not disclose what they know.
Not disclosing because nobody asked. Where the obligation is affirmative, waiting to be asked is not a defense.
Water intrusion and any history of it. Structural movement and its repair. Roof leaks. Unpermitted work. Boundary disputes and neighbor disagreements. Prior insurance claims. Recurring pest issues. Systems known to be at end of life.
On specialty property, add the ones specific to it: dock permit conditions, seawall history, well and septic performance, water rights disputes, and anything the association has notified you about.
The counterintuitive part, and the reason to take it seriously rather than minimally.
A defect disclosed upfront is priced into the transaction and stops being a negotiating lever. The same defect discovered during a buyer's inspection becomes leverage at the moment the seller has least, and the credit demanded consistently exceeds the cost of the work.
Disclosure also removes the argument later. A buyer who was told, in writing, has no claim about it afterward.
The seller who discloses a roof at end of life with an estimate attached, and prices accordingly, is in a considerably stronger position than one hoping it goes unnoticed.
Write it down, specifically. "Some water intrusion in the northwest corner of the basement during heavy rain, in 2019 and 2022, drainage remediated in 2022 by a contractor, invoice attached" is a good disclosure. "Some past water" is not.
Attach the documentation — reports, invoices, permits. It converts an admission into evidence of a problem handled.
Order a pre-listing inspection so you know what you are disclosing rather than discovering it alongside the buyer.
And when uncertain whether something is disclosable, disclose it. The cost of disclosing something unnecessary is nil. The cost of the reverse is not.
Generally, known material facts about the property's condition — material meaning something a reasonable buyer would consider important in deciding whether to buy or what to pay. The specific requirements vary considerably by state.
No. As-is generally means you will not make repairs. It rarely removes the obligation to disclose what you know.
Usually yes, particularly if it recurred or the repair was partial. Disclose the issue and the remedy together, with documentation attached.
Because a disclosed defect is priced in and stops being a negotiating lever. The same defect found during inspection becomes leverage when your position is weakest, and the credit demanded routinely exceeds the cost of the work.
Specific and documented. The nature of the issue, when it occurred, what was done and by whom, with reports and invoices attached. Vague admissions are worse than useless.
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