If you are buying a home in the Granite State, you are probably familiar with the “Live Free or Die” state motto. This motto speaks to New Hampshire’s ethos of individual freedom. However, it also underlies the state’s frequent aversion to regulation. For example, most states in the U.S. have legislation that requires a home seller to give a written disclosure report to potential buyers like yourself. Such reports typically identify any “material defects” in or around the property; that is, any serious problems that would lower its value. These might range from a defective refrigerator to a leak or pests in the attic to a neighbor dispute over the property boundary.
But New Hampshire does not require sellers to make such extensive disclosures to you as a prospective home buyer. Indeed, the disclosure law covers only a few particular aspects of the home being sold.
If the seller uses a real estate agent in the sale, however (as is the norm), that agent may need to make certain disclosures to you based upon professional regulations and state law.
Before you close on a New Hampshire home, what sorts of disclosures should you expect to see from the seller or his or her agent?
As discussed, the disclosures required by New Hampshire law with regards to residential property sellers are somewhat limited compared to those of other states. N.H. Rev. Stat. Ann. § 477:4-d requires that, prior to any offer of sale by the buyer, the seller must disclose, in writing, the following:
If no information about the private water system, sewage system, or insulation is available, these facts must be disclosed in writing. Remember, most homes will not have “private” water or sewer systems; they’ll use the public ones. Thus, this disclosure requirement may not apply to your home sale at all.
N.H. Rev. Stat. Ann. § 477:4-a further mandates that the property seller give you certain notices about radon gas, lead paint, and arsenic. They are all available online, and your real estate agent or attorney likely has a sample form for the seller to use, which you will need to sign. These are essentially form notices, warning you that you should be aware of certain environmental hazards for structures of a certain age.
Beyond these statutes, New Hampshire lacks any broader laws requiring home sellers to give you formal disclosure statements about physical defects. Rather, New Hampshire courts enforce caveat emptor clauses in purchase contracts. Under the doctrine of caveat emptor (“let the buyer beware”), judges ordinarily refuse to compensate buyers for home defects found after the purchase.
Notwithstanding the lack of broader legislation on disclosure and the caveat emptor doctrine, New Hampshire does have some relevant regulations that applies to real estate agents around disclosures of property defects. N.H. Rev. Stat. Ann. § 331-A:25-b provides: “The duties of [an agent] acting on behalf of a seller… include… Treating all prospective buyers… honestly [and]…. Disclosing to a prospective buyer or tenant any material physical, regulatory, mechanical, or on-site environmental condition affecting the subject property of which the licensee has actual knowledge.” Moreover, the statute mandates that this disclosure “shall occur at any time prior to the time the buyer… makes a written offer to purchase or lease the subject property.”
This statute places the burden on the real estate agent. If the seller happens to tell his or her agent about a material defect in the home; or the agent happens to notice that defect while walking around the property; the agent would have a legal obligation to report such facts to you. An agent who fails to disclose such a fact to the buyer could lose his or her license. Thus, a real estate agent faces a great deal of risk if he or she knows about a defect, but fails to disclose it in order to expedite the sale.
How might you receive such disclosures from the agent? The New Hampshire Association of Realtors provides a commonly used disclosure form, which covers many of the critical elements of the home. This form allows the seller or agent to check “Yes,” “No,” or “Unknown” in response to a few dozen questions about the property. It also asks for some basic information about the house, for example whether the property is subject to any special taxes or assessments.
As you can see, a New Hampshire seller’s disclosure obligations are fairly minimal. They relate largely to specific conditions of water supply and sewage.
Assuming your seller uses a real estate agent in the transaction, they must disclose only material defects about which they actually know. This is a crucial limitation. As the statute says, nothing in the law creates an “affirmative obligation on the part of the [agent] to investigate material defects.”
This means that the real estate agent does not need to perform any sort of inspection or receive any formal reports before attempting to sell the home. Rather, the agent is required to disclose to the buyer only what was manifestly obvious or what the seller actually mentioned about the property. If the seller does not reveal any defects, then the agent probably will not need to disclose any defects.
For these reasons, you should protect yourself by insisting on conducting your own independent inspection of the home. A professional inspector can visit the home and search it floor to ceiling, advising you of any serious defects that might alter your decision to purchase it. This sort of inspection can help you avoid pitfalls, given New Hampshire’s lack of extensive disclosure requirements.
You could also add a clause to your purchase contract requiring the seller to provide you with written disclosures before you close the deal. That would help guide your inspector in knowing what to take a second look at, and may reveal problems that not even an inspector could find. Your real estate agent should be able to provide you with a form for the seller to fill out.