I received several great emails from agents after I wrote the first post on this topic last week.
As we discussed in the legal tip, a person acting in a fiduciary position does not have to prepare a seller disclosure. This means neither the personal representative of an estate nor a trustee of a trust has to prepare the disclosure. Please be careful not to confuse this position with that of an heir or devisee selling property. If the estate is the seller, then no disclosure is required. However, if someone received property from an estate and is now selling it in their individual name, the seller must do the disclosure even if they never lived in the property. A trustee likewise does not have to do a disclosure when selling trust property. However, I believe if the trustee actually resides in the house then the trustee should do the disclosure.
Not living in the property does not relieve your duty to complete the disclosure unless you fall into another exemption category. A non-occupying owner can and must answer the seller disclosure questions. The question to ask is, do you have knowledge of a problem or defect? Just because you did not live in the house does not mean you do not have knowledge or the ability to answer the questions. Either you know or do not know about a defect or condition. Do not allow your clients to plead ignorance and fail to answer the questions that they are required by law to complete.
Remember these seller disclosure issues are very important to you. When a buyer takes action due to failure to disclose, the buyer most often names the seller and the real estate agent in the lawsuit. You need to protect yourself by knowing these rules and making sure that your client fully and honestly answers the questions. Do not be afraid to speak up if you feel the disclosure is inaccurate, incomplete or dishonest. You may be saving yourself a lot of problems later.
Today’s historical fact: Sumter Street is named for Thomas Sumter. Sumter is one of South Carolina’s most famous figures. Sumter was a brigadier general in the South Carolina militia during the American War of Independence. He served in the United States House of Representatives and United States Senate from 1801 to 1810. He was nicknamed the “Carolina Gamecock” by British General Banastre Tarleton due to his fierce fighting style. Since 1903 the University of South Carolina has been known as the “Gamecocks.” Additionally, the City of Sumter, County of Sumter and Fort Sumter are all named for him.