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Many of us have gone through the process of listing and selling a home. We understand the basic agreements and documents that are needed, and these are commonly a listing agreement, purchase agreement, settlement statement, and eventually a deed that conveys title to the real estate from seller to buyer. If you have been through this process recently, you have probably encountered several other documents labeled as a ‘disclosure’ that you were required to fill out. Gone are the days when a listing agreement or purchase agreement fit on a single sheet of legal-sized paper. A few real estate brokers in the area probably remember those days … now the disclosure obligations are much more substantial.
A seller of residential real estate in Minnesota is required to provide several disclosure statements to a prospective buyer of the seller’s home and property. Under Minn. Stat. 513.55, before signing a purchase agreement, a seller must provide to a prospective purchaser a written disclosure of all ‘material facts’ which could adversely and significantly affect the use and enjoyment of the property or intended use of the property. A seller is obligated to make such disclosure in ‘good faith’ and based upon ‘the best of the seller’s knowledge’ at the time they fill out the disclosure.
There are several exceptions to the requirements of 513.55, such as a gratuitous transfer, transfer to a tenant, transfer to heirs, transfer to family member, transfer ordered by the court, new construction, and foreclosures as well as a few others. A few of these exceptions are to be used in cases in which the seller did not live in the home or have actual knowledge of its condition. Others in cases where the buyer has been living in the home. This general disclosure requirement can also be waived by a prospective buyer.
In addition, sellers are obligated to provide a well disclosure, private subsurface sewage treatment system (i.e. septic) disclosure, and disclosures on lead paint, radon, methamphetamine production, and where to obtain information on airport zoning regulations and predatory offender registry. These disclosure requirements cannot be waived by a prospective buyer.
Under Minn. Stat. 103I.235, a seller must disclose to a prospective buyer, the number of wells on the property, their location, and whether in use, not in use, or sealed. The private subsurface sewage treatment system disclosure required under Minn. Stat. 115.55 must include similar information as well as any previous inspection reports. The Minnesota Radon Awareness Act was more recently enacted, and the Act requires the seller to disclose any known radon concentrations in the home, radon tests conducted, mitigation done, and other information. Plus, a seller must provide the ‘Radon in Real Estate Transactions’ pamphlet published by the Minnesota Department of Health.
Disclosures on lead paint are required by federal law and apply to homes built before 1978.
A seller’s failure to make the disclosures required under Minnesota law does not cause a purchase agreement to be unenforceable and does not invalidate a conveyance of real estate. Such a failure may lead to potential liability or a lawsuit, so fully complying with the disclosure laws at the start of the selling process is in the best interests of a seller. There are disclosure obligations imposed on real estate licensees – real estate brokers and agents, but these are beyond the scope of this article.
If you are planning to sell your residential property, your real estate broker or agent can help guide you through the substantial disclosure obligations under Minnesota law. If you have a specific question on these disclosure laws and whether they apply to your particular situation, it might be helpful to contact your attorney with expertise in this area.
Any requests for topic suggestions may be sent to rene@breenandperson.com. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.