If you are in the process of putting your home on the market for sale, you certainly find yourself with a myriad of questions and even concerns. In that regard, if there has been an unattended death in your home or somewhere on your property, you my have questions about the reporting requirements. California law generally governs the reporting requirements of a homeowner like you, including in regard to a death on your property.
California Homeowner Reporting Requirements
California statutes set forth specific reporting requirements that are set forth in the Transfer Disclosure Statement. The TDS lists all of the specific disclosures that a homeowner must make about physical issues at the premises. When it comes to putting your California home on the market for sale, the California Association of Realtors has developed a standard TDS form. This form can be utilized in all residential sales transactions that occur in California.
If you engage a Realtor, that professional will be able to provide you this form. If you elect to go the for sale by owner route, you can download the TDS at the link set forth a moment ago.
Specific Requirement Regarding Disclosure of a Death on the Property
California law requires that you advise a prospective buyer of any unattended death that occurred at your property within a three-year time period. There are no exceptions to this requirement.
If you fail to make this disclosure to a prospective buyer, you’ve run afoul of California law. If a person ends up purchasing your residence and you fail to make this disclosure, you will have failed to make a material disclosure to the buyer. If the prospective buyer learns of the death on the premises after signing a sales contract, this failure to disclose this material fact provides the buyer the ability to walk away from the contract.
If a buyer purchased your residence and learns you failed to disclose a death at the property, the buyer would be in a position to take legal action against you and seek damages in the form of financial recovery from you. The claim for damages would be based not only on the material violation of the California disclosure law but also upon a contention that the death negatively impacts the value of the property. In other words, had the buyer known of the death and elected to proceed with making an offer, that offer would have been less than what actually was put forth.
Realtor Fails to Disclose
You may wonder what happens if advise your Realtor of the death on the premises, and the Realtor fails to disclose the death to a prospective buyer. There is a reason why a Realtor representing a seller – you – is called a real estate agent. A Realtor working on behalf of seller legally is an agent.
As an agent, a Realtor stands in your shoes, represents you and your interests. As a result, if your real estate agent fails to make a disclosure, you are deemed responsible to the seller for that failure. A buyer could take appropriate action against you and your agent in such a situation.
If you dutifully advised the Realtor of the death on the premises, and the Realtor fails to make the disclosure, you may have a right to recourse against the agent. Nonetheless, the buyer would have recourse against not only the Realtor, but you personally as well.
Notorious Type of Death Beyond a Three-Year Period
California law becomes less clear when a more notorious type of death occurred on the premises at a point in time beyond the three-year time period. California statutes do not have a death reporting requirement beyond the three-year period. With that said, there have been some cases in California appellate courts which potentially work to enhance this reporting requirement.
If a notorious death occurred at a particular residence, a death that others in the community may fairly well know about, courts have indicated in some appellate cases that information about this death needs to be conveyed to a buyer even if beyond three years. A death may be notorious, but a specific buyer may not know of it.
The basis for providing this information is a notorious death, or some other notorious circumstance surrounding a property, has the potential for lowering the value of the real estate. California courts have concluded that buyers have the right to have direct information about issues like a notorious death beyond the three-year period that potentially impacts property value.
Better Safe Than Sorry
It’s a cliché. Nonetheless, when it comes to a death on the premises beyond the three-year time period, you likely should take the better safe than sorry approach. In other words, if you have a question about whether you need to disclose such a death, you should err on the side of disclosing.
In addition, if you have disclosure questions, consult with a professional. A real estate professional or a real estate attorney can assist you in making decisions regarding disclosure matters, including the disclosure of a death at your home.