Seller Disclosure Obligations

Selling an Arizona Home: What Are My Disclosure Obligations?

Before selling residential property in Arizona, a seller is required by law (a combination of statutes and court cases) to tell the prospective buyer certain things about the property’s physical condition. An Arizona seller has a duty to disclose important facts that might negatively affect the value of the property. (This comes from a court case called Hill v. Jones, 151 Ariz. 81, 725 P.2d 1115 (1986).) The most typical method for disclosing this information is by completing a written disclosure statement and giving it to the buyer.

The information disclosed will help the buyer to make an informed decision as to whether to purchase the property and on what terms. If selling a home, it is important that you comply with these requirements, as failure to do so will allow the buyer to sue you if he or she discovers defects that you knew of but didn’t disclose.

What Information an Arizona Seller Needs to Disclose

A seller in Arizona is required by law to disclose important (material) information about the property that the seller actually and personally knows of.

What is meant by “important” or “material?” You are not required to disclose every little detail about the property to the buyer, down to the last little scratch on the floor. Important or material issues are those that have an impact on the value of the property, the buyer’s decision to purchase, or use of the property.

There’s an exception to this rule, however: You must also disclose information to the buyer, if the buyer asks, about aspects of the property that you yourself do not think particularly important. (See Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 215, 619 P.2d 485 (1980).)

You are also not required to perform any investigation of the property, and you are not responsible for reporting issues that you “should have known,” but did not know. If you do not know the answer to questions raised by the buyer or listed on the standard disclosure form (which is provided by the Arizona Association of Realtors), you may satisfy the disclosure requirements by indicating that you do not know.

Never guess on an answer – you may be held responsible for misrepresentation if your guess is incorrect.

Your purchase agreement with the buyer will most likely require that you provide a disclosure statement. But even if it does not, you must disclose all legally required property information to the buyer. For example, you must let the buyer know about past termite damage even if the buyer does not ask about it. This is true even if the damage occurred several years ago and there is no visible sign of the damage.

Updating the Disclosure Statement

If information you provided to the buyer changes after you’ve given him or her the disclosure form, you have a duty to disclose the new information. For example, if the roof starts leaking after you provide your disclosure statement, but before you actually close on the property, you must give the buyer information about the roof leak. Remember that this disclosure does not require you to repair the leak, only to let the buyer know about it. (You may negotiate the repair issue as part of the contract negotiations).

Reasonable minds may differ as to what property information is important, and therefore required to be disclosed. When in doubt, it is best to disclose all property information to the buyer.

What Information an Arizona Seller Doesn’t Need to Disclose

As stated above, a good rule to follow is to disclose all material property issues to the buyer. There is some information, however, that a seller does not legally have to disclose, such as:

• Whether the property is located in an area with a sex offender. (Buyers can look up this information online, using the Arizona Department of Safety sex offender database.)
• Whether the property was previously owned by someone diagnosed with AIDS, exposed to HIV, or diagnosed with any other disease not known to be transmitted through occupancy.
• Whether a suicide, natural death, murder, or any other felony was committed at the property.

(See Ariz. Rev. Stat. § 32-2156.)

If the buyer asks, however, it is important that you do not lie to or make misleading statements about the matters above. Instead, either answer honestly or indicate that you will not answer because you are not required to do so by law.

How Arizona Sellers Disclose the Required Information

Unlike in some states, the Arizona legislature has not come up with a specific disclosure form that a seller must complete. In an effort to assist sellers in satisfying their disclosure requirements, the Arizona Association of Realtors drafted the most commonly used disclosure form, the Residential Seller’s Property Disclosure Statement(pronounced “spuds” by real estate professionals in Arizona).

The form is essentially a checklist asking you to indicate the condition of various features of the property and known problems affecting the property.

The disclosure statement is not a warranty, but simply a disclosure of facts of which the seller is aware. It actually requires the buyer to acknowledge that the information in the statement is based only on the seller’s actual knowledge.

The seller is obligated to make the required disclosures regardless of whether the property is being sold “AS IS.” (See S. Development Corp. v. Pima Capital Management Co., 201 Ariz. 10, 31 P.3rd 123 (2002).)

The standard Arizona Association of Realtors contract requires a seller to deliver the disclosure statement to the buyer within five days of accepting the buyer’s offer. It is customary, and general good practice, however, to provide the disclosure statement early on, for example, at open houses or when showing the property to prospective buyers.

The disclosure statement is divided into the following six sections:

• Ownership and Property. This section asks for general information about the property, such as location, ownership, and occupancy.
• Building and Safety Information. This asks for information on the structural integrity of the property. It covers heating, cooling, plumbing, and electrical information and asks about the condition of any pool, spa, or other water feature. It asks about the existence of termites, scorpions, reptiles, and any other such issue. It also covers information about improvements on the property, including whether the seller is aware of any unpermitted construction.
• Utilities. This section asks about provided utilities.
• Environmental Information. This sections covers a variety of environmental information, including issues relating to soil settlement, drainage, erosion, noise and odors from the surrounding area, lead-based paint, asbestos, and mold.
• Sewer/Waste Water Treatment. This section covers the type of sewage system the property uses.
• Other Conditions and Factors. This section provides space for the seller to disclose any other important information concerning the property that might affect the buyer’s decision making process, the value of the property, or its use.

Additional Real Estate Disclosures in Arizona

In addition to the property disclosures referenced above, Arizona law requires additional disclosures in certain circumstances. For example, the standard Arizona real estate contract requires the seller to provide the buyer with a copy of a report showing a five-year history (or the length of time the seller owned the property if less than five years) of insurance claims filed on the property – called a Comprehensive Loss Underwriting Exchange (CLUE) report.

If a home was built prior to 1978, federal law requires the seller to disclose all information regarding lead-based paint and provide a pamphlet on identifying and controlling lead-based paint hazards. More information on lead-based paint can be found on the Environmental Protection Agency website.

Depending on the circumstances, a seller may also be subject to the following statutory disclosure requirements:

• Swimming pool barrier disclosure (Ariz. Rev. Stat. § 36-1681(E)).
• Condo disclosure information (Ariz. Rev. Stat. § 33-1806 & 33-1260).
• Notice of soil remediation (Ariz. Rev. Stat. § 33-434.01 & 49-701.02).
• Disclosure affidavit for land in unincorporated areas (Ariz. Rev. Stat. § 33-422).
• Military airport disclosure (Ariz. Rev. Stat. § 28-8484).

What Can Happen to a Seller Who Violates Arizona’s Disclosure Requirements

If you violate the disclosure law by misrepresenting or not disclosing required information, the buyer may pursue legal action against you for failure to disclose, fraud, or misrepresentation (intentional or negligent). A buyer who is successful in such a lawsuit may be awarded substantial monetary damages. Or, in unusual cases, a court may void the contract and returned all property or money back to the original parties, as if the purchase never occurred. So remember, if in doubt, to avoid litigation, make sure to disclose all information about the property.