Effective for all homes that close after January 1, 2003, home owners in South Carolina are required to fill out a form that discloses material facts about the house they are selling. The exact form approved by the state must be used and is available from your Realtor and covers the topics below and more. The form give the seller the opportunity to answer yes, no, or no representation to each question The form and disclosure of material facts are required whether or not the seller is represented by a selling agent. Examples of Material Facts - Age of shingles and other roof components.
- Leaks in the roof or foundation walls.
- Existing mold or mildew within the home.
- Damage from wood destroying insects.
- Problems with sewer or septic systems.
- The amount of property taxes paid per year. Outstanding assessments.
- The square footage of the home.
- A planned roadway that will slice ten feet from the property's front yard.
- The existence of a buried oil tank.
- In short, details about the condition of the property, the age of its components and any defects that may exist or have existed.
- Seller's agents are required to disclose material facts to potential buyers.
Things That Are Not Material Facts - Personal information about a seller, such as impending foreclosure or divorce.
- The seller's reasons for moving.
- People with AIDS or HIV are considered legally handicapped by fair housing laws. An agent cannot legally answer you if your questions about the home focus on that illness.
- Seller's agents are not allowed to disclose personal information. Buyer's agents may disclose personal information to their clients, except AIDS/HIV as discussed above.
Things that May or May Not Be Material Facts (when in doubt, disclose – unless it relates to a protected class such as AIDS/HIV, then more disclosure is better than less) - That a death occurred in the home, even if it was a homicide. Neither is considered a material fact in South Carolina, so disclosure is not made unless a buyer specifically asks--then the agent must be truthful. Your state laws may differ (again, note the exception for AIDS/HIV).
- That a home is considered to be haunted.
Agent Expectations Agents are not expected to be home inspectors, but they can be held accountable for material facts they are aware of and do not disclose. For instance, - If a seller covers rotting exterior wood with another siding before an agents sees the home, the agent wouldn't be expected to have knowledge of it. But if that operation is taking place during the listing, the agent must disclose the problem if the owner does not.
- The agent notices that sellers have elevated anything that's stored in the basement. The agent should ask if there's an ongoing water problem.
Bottom Line - Ask as many questions as necessary about the home before you make an offer. Get the responses in writing.
- Make sure your offer to purchase is contingent on a satisfactory home inspection.
- There may be instances when a specific seller is not required to furnish a property disclosure such as in a court ordered sale. They should still disclose known problems.
- Sellers often declare "no representation" when they are unaware or unsure of a problem. It doesn't necessarily mean they are being evasive. Perhaps the home is part of an estate settlement and the person handling the sale simply doesn't know the answers. Maybe it's a vacation residence that the seller hasn't recently used. Hire a qualified home inspector to help head off any problems. However, “No representation” does not release the seller from liability if it is something that the seller knew or “should have” known about.
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