FSBO Seller Disclosures

Sellers are obligated by Arizona common law to disclose all known material facts about a property to the buyer. Many people do not understand that disclosure is of enormous benefit to the seller. Not only will nondisclosure lead a buyer to wonder if the seller has something to hide, a seller may be liable in the event that defects are discovered that the seller knew about. This is why it does not benefit the seller to simply not provide a disclosure and have a buyer provide notice of waiving receipt of a property disclosure. A buyer’s waiver does not excuse the seller’s duty to make disclosures. The same goes for situations where the seller contracts to sell a property in as-is condition. The seller has the legal obligation to disclose all known material facts in as-is sales as well.

The simplest way to disclose all materials facts known to seller is to complete a property disclosure form that has been drafted to comply with the disclosure requirements of Arizona law. Otherwise, a seller might overlook or forget some details that should have been disclosed. The Arizona Association of REALTORS® (AAR) provides a form for this use called the Seller Property Disclosure Statement (SPDS). BUT, this AAR form is for AAR member use only. The unauthorized use of the AAR forms constitutes copyright infringement. Contact Asset Law Firm, PLLC to draft disclosure documents customized to your property and transaction.

Arizona law also requires that sellers make additional disclosures to prospective buyers under certain circumstances:

1. Swimming pool: seller must provide a notice explaining safety education and responsibilities of pool ownership as approved by the department of health services, A.R.S. § 36-1681.

2. Planned community or condominium association: buyer must receive documents, including, but not limited, to disclosures, statement, bylaws, rules and other information, A.R.S. § 33-1806 and A.R.S. § 33-1260.

3. Notice regarding soil remediation: required in certain circumstances A.R.S. § 33-434.01 and A.R.S. § 49-701.02.

4. Affidavit of disclosure: required of a seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county, A.R.S. § 33-422.

5. Military or public airport: seller must disclose if the property is located in territory in the vicinity of a military airport, ancillary military facility or public airport, A.R.S. § 37-102 and A.R.S. § 28-8486.

6. Subdivision pubic report: required of any person who offers for sale six or more lots or who causes land to be subdivided into a subdivision, A.R.S. § 2183 and A.R.S. § 32-2101.

7. Dangerous drug lab disclosure: owner shall  remediate property or notify the buyer that methamphetamine, ecstasy or LSD was manufactured on the real property or that an arrest was made pursuant to the applicable statute, A.R.S. § 12-1000.

The above disclosures are required by law in certain circumstances. Said disclosures must be drafted in a particular manner and must be provided at specified times during the sales transaction. Nondisclosure can expose a seller to liability so it is prudent to take steps to avoid allegations  of failure to disclose. The buyer can sue for failure to disclose, fraud, intentional misrepresentation or negligent misrepresentation, and damages can include money or voiding of the contract. Contact Asset Law Firm, PLLC to draft the needed disclosures and guide you through the process of timely providing them to the buyer. Evening and weekend appointments available.