With the proliferation of home staging consultants, home design television programs, and so on, sellers have been taught to spruce up before listing their homes for sale. As a potential buyer, you will likely enjoy viewing clean, uncluttered spaces during your search, but what about the problems lurking beneath the fresh paint and refinished floors?
You can, and should, hire a professional inspector to look for home defects before you finalize your home sale. However, some defects are not detectable in a typical home inspection. They may be latent—not yet active or visible. Defects may also be hidden behind drywall, paneling, shelving, or furniture. Other defects manifest only under specific conditions that may not be present on the day of the inspection. Leaks may become visible only after a particularly wet spring. Foundation cracks may not be evident in winter when snow is piled up around the house. Air conditioning and heating can be accurately tested only in the appropriate season. This is why the Illinois legislature passed the Residential Real Property Disclosure Act (765 Ill. Comp. Stat. § 77/1 et. seq.) (the Disclosure Act), to make sure buyers receive information straight from the people who have been living in the house.
For further information about the seller’s obligations under Illinois Residential Real Property Disclosure Act, see Nolo’s Article, “Illinois Home Sellers: Disclosures Required Under State Law.”
The Illinois Disclosure Act requires the seller to complete and deliver a standardized disclosure form to the buyer before accepting the purchase and sale contract. The disclosure form contains a series of questions about potential defects, or unsafe conditions on the property. The seller answers each question "yes," "no," or "not applicable," and should explain all "no" and "not applicable" answers in detail, within the spaces provided or on attached pages.
As a buyer, you will want to read the disclosure form carefully. Don’t just skim through it, but take note of each entry where the seller has disclosed information about defects and unsafe conditions on the property, such as:
If you have questions after reading the form, or wonder why potential defects that you saw signs of during your own visits to the property weren’t mentioned, you can ask your agent to ask the seller’s agent about the matters in question, ask your inspector to take a careful look at that portion of the property, or both.
A home seller in Illinois is not required to inspect the property, nor to consult with property experts before completing the disclosure form. If the seller does not actually know about a condition, it will not be on the disclosure form, even if the seller should have known about it. If a known defect has been repaired, and the seller has no reason to believe the repair did not cure the defect, the seller need not disclose information about the defect, or the repair.
This should serve as a reminder of the importance of getting a home inspection. After living in a home for a period of years, sellers often become blind to problems there.
The seller can also omit information about conditions that are not considered to be "material" — that is, do no significantly affect the value of the property or an occupant's health and safety. Examples of material defects are unsafe levels of radon or black mold, lead paint, insect infestations, defective plumbing or electrical work. Conditions that are merely cosmetic, such as a sloppy paint job or uneven closet doors, are not typically deemed material.
The seller need not disclose general information about the property, such as a history of use as a farm or factory, even if that general information makes it more likely that one of the specific conditions listed on the disclosure form is present.
The seller is not required to disclose the existence of conditions on neighboring property that could affect the property or information about individual neighbors, including information about neighbors who are registered sex offenders. However, you can research the presence of sex offenders via the Illinois Sex Offender Information website.
Also, the seller need not disclose past events that occurred on the property, other than events that have left a lingering defect or unsafe condition on the property. That means, for instance, that the seller need not disclose notorious crimes that occurred on or near the property. With a simple online search of the address, however, you can probably turn up such information on your own.
You will discover the most information about the property by consulting various resources. The listing agent should furnish you with the seller’s completed disclosure form before the seller accepts your contract. Once you and the seller have both signed the contract, you can arrange for an inspection of the property by a local licensed home inspector.
The inspector will give you a written report and may recommend more technical, detailed, or specialized inspections if any observable or disclosed conditions indicate that these would be prudent. For example, cracked brickwork could indicate continuous foundation settling, which should be inspected by a structural engineer. Or, water damage could have resulted from recent weather conditions, but could also indicate plumbing or sewer defects.
You should also talk to neighbors to find out what they know about neighborhood conditions such as wind damage from storms, street flooding, crime, or recent repairs made to the property. And, you should consult local building records for information about past applications for construction or repair permits.
Consult with a local attorney for more information about the Illinois Disclosure Act, seller’s liability for home defects, or recommended actions to take before you complete your home purchase.