So, you’ve been looking to buy a home in Georgia, and finally a house you’ve had your eye on is up for sale. You decide to meet with the seller’s real estate agent (also known as a “listing agent” or “listing broker”) to find out all you can about the home before making an offer. But will the listing broker tell you about any problems with the property? What must a listing broker in Georgia disclose about the property's condition?
Under Georgia law, the listing broker must disclose any material facts known to the broker about the physical condition of the home and any additional structures on the property. The broker must also disclose any material facts he or she knows about the physical condition of the land itself, specifically including any environmental contamination. (Official Code of Georgia, Annotated §10-6A-5.(b)(1).)
A “material” fact that must be disclosed is usually defined by Georgia courts as anything that would cause the buyer to offer a lower price or deter the buyer from purchasing the property. For example, the listing broker must inform you if he or she knows that the home has a crumbling foundation, or that the backyard was used as a landfill. These are facts that you, as a buyer, would no doubt consider material.
The listing broker also must answer any questions about the condition of the home and property honestly and cannot lie about their condition. You might want to ask about everything from whether the owners smoke to whether the neighbors are loud or have difficult pets.
However, the broker does not need to tell the buyer about anything that could be discovered upon the buyer’s reasonable inspection of the property. (Official Code ofGeorgia, Annotated §10-6A-5.(b)(1).) Basically this means the broker doesn’t need to tell the buyer about things that are obvious to the buyer when looking around the property. So, while the listing broker does need to inform you of the crumbling foundation, since it’s hidden under the home, the broker does not need to specifically mention the dumpsite in the back yard, if the site has not been covered up, and the moment you walk out the back door you see a heap of scrap metal and trash.
In Georgia, the listing broker’s disclosure obligations extend beyond informing the buyer of facts known about the home and property. The broker must also inform the buyer of any material information known to the broker about the neighborhood within one mile of the home. A big exception to this disclosure requirement, however, is that the listing broker does not need to inform the buyer about any information that the buyer could discover upon a diligent inspection of the neighborhood.
Unlike a “reasonable inspection” of the property discussed above (where just looking around is enough), a “diligent inspection” of the neighborhood requires buyers to do much more than just have a general snoop around the area. The Georgia Statutes say that the broker does not need to tell the buyer any facts about the neighborhood that the buyer could find out by reviewing reasonably available governmental regulations, documents, records, maps, and statistics.
This means if you are a buyer in Georgia and want information about the neighborhood, you must do your own research and study the relevant land use maps and plans, zoning ordinances, recorded plats and surveys, transportation maps and plans, maps of flood plains, tax maps, school district boundary maps, and maps showing the boundary lines of governmental jurisdictions. (Georgia Code Annotated §10-6A-5(b)(2).)
Even though the listing broker must inform you of any material facts about the property known to the broker, as a Georgia buyer, you can’t rely only these disclosures and expect to have anything close to full knowledge of the property. The listing broker may not know much more than what he or she has learned from looking at the property with an experienced eye. The broker probably has never lived in the property or the neighborhood, and has no duty to investigate or discover any problems with the property or the neighborhood.
Additionally, even though a broker cannot knowingly give out false information, the broker is not liable for passing on to a buyer false information from a third party (so long as the broker tells the buyer where the information came from, and does not know the information is actually false). (Georgia Code Annotated §10-6A-5(b)(2).) So, if the listing broker lets you know that the seller said the garbage pit in the back yard has nothing toxic in it, the broker has no liability if you later discover a few old barrels of oil under the trash (unless, of course, the broker actually knew about the oil).
Although a Georgia listing broker must, in general, disclose known problems with the condition of the home and property, there are exceptions under the Georgia statutes. They all relate to things that occurred in the home, not the physical condition of the home.
A listing broker in Georgia does not need to inform a buyer if any diseased person ever lived in the home, or if a homicide, felony, suicide, or any other death occurred there (Georgia Official Code Annotated §44-1-16(a)(1)). Additionally, Georgia statutes state that a broker is not required to inform the buyer if a registered sex offender lives in the area (Georgia Official Code Annotated §44-1-16 (b)). (Most form real estate contracts used in Georgia direct a buyer where to look online for information about the location of registered sex offenders.)
Even if the listing broker is not required to disclose certain information, the broker must still answer any direct question from a buyer honestly (Georgia Official Code Annotated §44-1-16(a)(1)). If you have concerns or questions about events that may have occurred at the home, ask the listing agent point blank something like, “Was this the property where the suicide happened that I read about in the newspaper a year ago?” If the listing agent knows this information, he or she must give you an honest answer.
The only time the listing broker is not required to answer a buyer’s question completely and honestly is if it is a question relating to information protected under the Federal Fair Housing Act, or Georgia’s fair housing laws (Georgia Official Code Annotated §44-1-16 (a)(2)).
These laws protect people from housing discrimination based on race, color, religion, sex, national origin, familial status, and handicap. This means the listing agent is not allowed to give you information about things such as the homeowner’s religion, race, or marital status, or whether a person with AIDS (considered a handicap under the Fair Housing Act) ever lived in the home. (The Federal Fair Housing Act is found at 42 United States Code, Sections 3601-3619 and 363, and Georgia’s fair housing laws are found in the Georgia Official Code Annotated, Sections 8-3-200 through 8-3-223).)
As a home buyer in Georgia, you cannot count on getting all the information you need to make a good decision about a home purchase by relying only on the disclosures from a listing agent. Disclosures provided by the seller can be a better source of information (for further information on what a Georgia Seller must disclose see Nolo’s article “Home Sellers in Georgia-Your Disclosure Obligations.”)
However, to be a fully informed buyer, you must investigate the home and the property on your own. Ask questions of the listing agent, the seller, the neighbors, and anyone else with knowledge of the property. Make sure your purchase contract contains contingencies for a property inspection and title review, and hire professionals in your area to review and inspect the property on your behalf. Before you commit to purchasing that home you’ve had your eye on, it’s up to you to make sure it’s really as good as it looks!