When should the Ohio Residential Property Disclosure Form be updated?
On November 7, 2016
By Peg Ritenour, OAR Vice President of Legal Services/Administration
A question that is asked frequently on the Ohio Association of REALTORS Legal Assistance Hotline involves the seller’s duty to update the Ohio Residential Property Disclosure Form. In some cases this question may come up because the house has been on the market for a while and information on the form is no longer accurate. It could also arise due to issues that were uncovered by an inspection that results in the property going back on the market.
In determining whether a form should be updated, the seller’s focus should be on providing up-to-date information about the current condition of the property. To avoid a claim of misrepresentation and fraud, the information provided by the seller on the Residential Property Disclosure form must meet two standards. First, the information provided must be based on the seller’s actual knowledge; and secondly, the disclosures must be made by the seller in good faith. Good faith is defined in the statute as “honesty in fact.” Basically this means the seller should not provide a Residential Property Disclosure Form to a buyer that contains information they know isn’t true. And if you as the agent also know that the information is not accurate, you could be exposing yourself to possible risk as well.
So what does this mean for you as an agent? This means that you want to make sure that your seller isn’t inadvertently providing a disclosure form to buyers that contains information that the seller (and you) knows may not be completely accurate. The following are some best practices to protect you and your seller:
- If it’s been several months since the seller completed the form, have them review it to make sure their answers haven’t changed. A good rule of thumb is to have the seller do this when you are renewing the listing.
- If you represent a buyer who is making an offer on a property that has been on the market for a long time, ask the seller to provide an updated form or affirm that their answers are still accurate;
- If an inspection is done on the property that reveals problems, and the property ends up back on the market, the seller should revise the Property Disclosure Form to make sure complete and accurate information is being provided to future buyers. If the seller questions the inspector’s findings the seller should be have their own inspection done. However, even if the seller’s inspection contradicts the first report, the findings of both the “good” and “bad” report should be provided to subsequent purchasers. As the listing agent you definitely don’t want to decide which inspector is right or withhold any information that a buyer may consider material.
Legal articles provided in the OAR Daily Buzz are intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.