Selling a Kansas Home: What Are My Disclosure Obligations?

As a prospective home seller in Kansas, you know your property better than anyone. That is precisely why Kansas law requires that when you decide to sell, you make certain disclosures to potential buyers. Specifically, state law requires that sellers reveal problems that could affect the property's value or desirability, so that buyers are not unpleasantly surprised after moving in.

If selling your home in the Sunflower State, what must you disclose, and when?

Disclosure Laws in Kansas for Home Sales

Kansas has a number of separate pieces of legislation that require you, as a home seller, to make certain disclosures to potential buyers. Most broadly, Kansas Stat. Ann. § 58-30.106 states that you or your real estate agent must disclose to the buyer "all adverse material facts" that you actually know about the property,including:

• environmental hazards that affect it
• its physical condition
• any material defects in the property itself
• any material defects in the title to the property, and
• any material limitation on your ability to follow through with the terms of the purchase agreement.

Unlike in some states, Kansas law does not specifically state what areas or aspects of the property require some sort of disclosure. While there is no one required disclosure form, the Kansas Association of Realtors has created a sample form that generally covers the information buyers will want and expect.

As you can see, the form assists you in disclosing a range of potential defects with various aspects of your home and property. These include the appliances, electrical system, heating and cooling system, water systems, and various structural conditions. The form also contains a number of other disclosure questions, for example about whether there are any encumbrances on your legal title to the property (such as easements or boundary disputes), or any hazardous conditions (such as flood zones or asbestos).

Importantly, each section of the form contains space for "Other" defects or issues. In other words, while the form will help remind you about the various issues that might have cropped up in your home, it's up to you to make sure you are thorough and complete in making the legally required disclosures to the buyer.

Both you and the buyer will sign this form, acknowledging that it has been given and received. From your perspective, an important purpose of this exercise is to prevent the buyer from coming back to you after the closing and complaining that you never mentioned that there was, for example, a huge hole in the roof. Assuming you are honest on the form (or that the hole was visible without an inspection), you would have mentioned this sort of defect.

Separately, Kansas Stat. Ann. § 58-3078a requires that the home seller provide a disclosure about the presence of radon gas (which can be cancerous) to buyers. This disclosure can be made within the purchase contract itself.

Also included in the purchase contract must be statutory language about the buyer's ability to find information about registered persons convicted of certain sexual crimes in the area. Kansas Stat. Ann. 58-3078 provides the paragraph that must be included, which directs the buyer to the Kansas Bureau of Investigation.

Finally, Kansas Stat. Ann. § 12-6a20 requires home sellers to disclose whether the property is the subject of any "special assessments." This essentially means whether or not the property owner must pay municipal, county, or state taxes. If such assessments exist, you are required to provide the buyer with an approximation of the amount likely to be owed (to avoid nasty surprises after closing).

When Must the Seller Disclosures Be Made?

Kansas does not have specific statutory language about when exactly disclosures must be made to the buyer. Indeed, the statute specifically allows the radon, sexual convict, and special assessment disclosures to be made within the purchase contract (rather than as separate documents given prior to the signing of the purchase contract).

Talk to your real estate agent about the custom in your area and strategies appropriate to your home sale.

What Issues Need Not Be Disclosed to Kansas Home Buyers?

Importantly, Kansas doesn't require home sellers to hire an inspector to root out problems or to verify the information disclosed in the form. Rather, you are required to disclose only defects that you knew about when making the disclosure.

Also, in filling out the Kansas Association of Realtors sample form, you are not legally required to answer every single question. Just be aware that a blank space could make a buyer suspicious, and that the statute DOES require you to disclose "any material defects" within your knowledge.

Why You Should Be Honest and Open in Making Disclosures

All of these disclosures might seem to make life more complicated, since they force you to confront, not to mention reveal to prospective buyers, potentially value-diminishing aspects of your property. Why should you be honest in making these disclosures?

First off, many of the issues with your home might emerge when the buyer does a home inspection, as is a common condition to closing a home sale. If the buyer discovers a number of defects that you didn't disclose, then the buyer will presume that you either lied (which is not good for future negotiations) or that you honestly didn't know about the problem and thus didn't factor them into your list price. Either way, the buyer is likely to come back at you with requests for repairs and/or a price reduction.

Or, if the buyer goes ahead and closes on your home without having discovered the defect, moves in, and then finds defects that appear to have existed and likely known by the owner prior to the sale, you could be on the receiving end of a lawsuit. Not only could the buyer sue you for common law causes of action like breach of contract and fraud, but you might also face liability under Kansas Stat. Ann. § 50-626, which covers "Deceptive Practices and Acts." Buyers have used this statute to litigate against sellers who misled them in their real estate disclosures.

While failing to make honest disclosures could (if you're lucky and the buyer doesn't hire a good home inspector) save you some trouble in the short term and result in a quicker sale, there is a potential for much greater trouble down the road. The better strategy is to be fully frank and honest in your disclosures, so that both you and the buyer get the benefit of the bargain, and closure once it's done.