As you search for a new Kansas home, you are no doubt looking for one that both looks good and will hold up well in the coming years. No house buyer wants to be surprised, after moving, in by discovering things like a massive termite infestation in the deck, or that, a leak in the roof whenever it rains, or that the new next-door neighbor is claiming that he owns part of "your" yard. How can you avoid nasty surprises like these, as you prepare to purchase a home in Kansas?
Fortunately, Kansas law requires that sellers of residential property reveal various problems that could affect the property’s value or desirability so that buyers know what they are getting themselves into. If you are buying a home in the Sunflower State, what must the seller disclose to you, and when?
The State of Kansas has a number of separate pieces of legislation that require sellers to make certain disclosures to potential buyers. Most broadly, Kansas Stat. Ann. 58-30.106 states that the seller must disclose to the buyer: (1) Any environmental hazards affecting the property; (2) the physical condition of the property; (3) any material defects in the property; (4) any material defects in the title to the property; and (5) any material limitation on the seller’s ability to perform under the terms of the purchase contract.
Kansas’s legislature does not specifically state what areas or aspects of the property require some sort of disclosure from the seller (i.e., the roof, basement, windows, and so on). Nor did it actually set forth language for a required disclosure form, as some states have done. However, the Kansas Association of Realtors has created aform that covers the information that you should expect your seller to disclose to you prior to signing the purchase contract. This form is not mandated; it is merely a guideline that is commonly employed in the Kansas real estate community.
As you can see, the three-page form includes a range of potential defects with various aspects of the 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 the legal title to the property (such as easements or boundary disputes), or any hazardous conditions (such as flood zones or asbestos). This question would address, for example, a neighbor’s surprise claim to the yard.
Kansas also has a few specific requirements regarding what the seller must disclose. Kansas Stat. Ann. 58-3078arequires the seller to provide a disclosure about the presence of radon gas, which is potentially cancerous. Radon, like asbestos, may require remediation before you move into the home.
Kansas Stat. Ann. 12-6a20 requires that the seller disclose whether the property is the subject of any “special assessments.” This essentially means whether or not the property is subject to any particular municipal, county, or state taxes. If such assessments exist, the seller must provide you with an approximation of their value.
Regardless of whether the seller uses the Kansas Association of Realtors’ form, or a similar form, both you and the seller should sign and date it. You should retain a copy. This will be your proof of what was or was not disclosed before you agreed to buy the property.
Finally, Kansas Stat. Ann. 58-3078 requires that, within the purchase contract itself, the seller must include specific language about your ability to find information about registered persons convicted of certain sex crimes in the area. This may be of particular interest to buyers raising young families. The statute provides the paragraph that must be included, which directs the buyer to the Kansas Bureau of Investigation.
Kansas law does not set forth specific language about when exactly disclosures must be made to a prospective home 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 its signing).
Nevertheless, you should push your seller to give you all disclosures as soon as possible. It makes sense to find out about any material defects in the home well before you sign the purchase contract, so as to offer a price that reflects those defects (while understanding that you may still negotiate the price down further, after you commission and receive the results of a home inspection).
All of the Kansas required disclosures might make you feel comfortable that you're getting the benefit of your bargin. But remember that these disclosures are not necessarily complete or correct, even if the seller makes them in good faith.
Kansas does not require sellers to hire an inspector or to verify the information disclosed in the form. Kansas Stat. Ann. 58-30.106(2) states that sellers have “no duty to conduct an independent inspection of the property" for the buyer's benefit. Rather, the seller’s disclosures can be based purely on personal knowledge. Translation: A seller who has never used the pool can honestly not disclose anything about a broken pool heater, even if the heater is actually broken.
And remember, even if most sellers make disclosures in good faith, some may lie intentionally, or at least minimize the scope of the defects. They may say that the air conditioner needs a small repair, when in fact it needs to be totally replaced.
These are precisely the reasons that you must perform your own due diligence before you purchase your Kansas home. While you're in escrow, hire a licensed Kansas home inspector to give you an independent analysis of the property’s condition. The inspector could use the seller’s disclosures as a starting point, to investigate any issues that are identified. But generally, the inspector should give you a sober, independent, and professional assessment of the home’s condition. With this analysis in hand, you can determine whether or not you want to proceed toward closing the sale or renegotiate the price.