Buyers & Sellers of Real Estate Beware!
Joseph M. Cammarata Esq. has nearly two decades of real estate experience. He draws on knowledge previously acquired as a real estate developer, and real estate agent in New York and New Jersey. Mr. Cammarata has negotiated millions of dollars of real estate contracts dealing in the sale of land, sale of condos, sale of homes, and contracts with sub-contractors. It is this experience he offers his client's when dealing in real estate transactions as their legal advocate.
Buying or selling real estate? It's worth the read to touch on the rights and responsibilities of each party in a NY real estate transaction.
"Caveat Emptor" is a latin phrase regarding real estate that translates to "buyer beware." NY adheres to the doctrine of Caveat Emptor and imposes NO duty on the seller or real property, or his agent to disclose any information concerning the property/premise when the parties deal at arms length, UNLESS there is some conduction the part of the seller or the seller's agent which would constitute an "active concealment." "The mere silence of a seller, without some act or conduct which deceived the purchaser, does not amount to concealment that is actionable as a fraud." Rozen v. 7 Calf Cr., LLC, 52 A.D.3d at 593. "To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agent thwarted the buyer's effort to fulfill his responsibilities fixed by the doctrine of caveat emptor. In other words, the seller does not interfere with the due diligence being conducted by the buyer in examining and inspecting the premise for its quality before closing on the property. NY has a 48 question disclosure form that must be filled out for real estate transactions. However, it can be waiver if the seller offers the $500 credit for not filling it out.
This post will explore the advantages and disadvantages of filling out the disclosure from the prospective of a seller and a buyer.
Sellers of Real Estate in NY State are required to fill out a 48 question detailed Disclosure Statement about the condition of the Real Property being sold. This disclosure MUST set forth to the buyer, all general information as well as structural, plumbing, electrical, mechanical and environmental conditions with the property. Some questions are simple; Is there asbestos present on the premises? This may be easily answered by referencing the year the property was built (new home). however, some other questions are complex such as questions asking whether or not there are "material defects" in the structural components of the home? These series of questions may expose the seller to liability.
If the seller fails to truthfully and properly answer the any of the 48 questions on the disclosure form, the seller can be liable to the buyer for damages. This can happen if the seller incorrectly answers a question which hinders or alters the investigation that the buyer does in determining if the property is free from defect via a home inspection. Even innocent omissions or mistakes can lead to great liability.
Cammarata Law urges its client's selling real estate to opt out of the 48 questions in the disclosure, and pay the $500 dollar credit toward the buyer of the property at closing in lieu of completing the complex disclosure act. This insulates the seller from some liability.
Most seller's heed the warning and risks associated with completing the disclosure and buck up the $500 dollars. However, some sellers feel the $500 may be better kept in their wallet. The problem with this is, that in the event that a defect was present in the home, and could have/should have been discovered by the seller, or they knew or should have known it was present, could lead to thousands of dollars in litigation costs and damages awarded to the buyer.
Buyers should request that the seller fill out the disclosure in lieu of giving the $500 credit. Filing out the disclosure would put the seller in a position of vulnerability in the event that a defect was later discovered by the buyer once in the house, that should have and could have been discovered or known by the seller. The answers can be used against the seller in the event that litigation regarding the property is necessary.
Unfortunately, mandating that seller fill out the disclosure may hinder the deal, and the seller may opt to deal with another buyer.
In sum, clients need to weigh all their options when determining whether or not to fill out the disclosure depending on what hat they wear at the time of the transaction (buyer or seller).
Below is the link to the NY property disclosure act.
Call today for a Real Estate Contract and Closing Representation.
Joe Cammarata Esq. 718-477-0020