Selling a Georgia Home: What Are My Disclosure Obligations?

So you are planning to sell your home in the state of Georgia. Perhaps you already have a few curious lookers peppering you with questions, and your listing agent is asking you to fill out something called a "Seller Property Disclosure Statement." How much information must you provide about the property to potential buyers, according to Georgia law? Will you scare them off if you reveal every detail? That's what we'll cover here, including:

• an overview of Georgia's law regarding home seller disclosures
• disclosure requirements placed upon Georgia real estate agents
• what form Georgia sellers can use to make property disclosures
• issues that home sellers need not disclose to Georgia buyers
• federal disclosure requirements relating to the presence of lead in the home, and
• legal risks for failure to disclose home defects to buyers.

Georgia Home Seller Disclosure Requirements

Georgia's statutes do not actually require sellers to fill out a disclosure form or otherwise take proactive steps to advise buyers of defects on the property. In fact, unlike in some states, Georgia courts follow the ancient doctrine of "caveat emptor" or "let the buyer beware" when it comes to sales of real estate. Buyers in Georgia are expected to look carefully at the property and hire inspectors in order to receive advance notice of issues and defects. (See, for example, Atlanta Partners Realty, LLC v. Wohlgemuth, 365 Ga. App. 386 (2022).)

That doesn't mean they can lie or obfuscate about your house's condition with legal impunity, however. For one thing, buyers might simply insist, as part of the deal, that you agree to provide a set of written disclosures.

For another, there's a major exception to the caveat emptor rule in Georgia, which "places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision." (Wilhite v. Mays, 140 Ga.App. 816 (1976).) In that case, the home seller knew there was a major defect in the house's underground sewerage system, but said nothing.

Thus, in order to prevent buyers' later accusations of misrepresentation or fraud, you should, as a home seller in Georgia, be upfront and answer buyers' questions. You might also simply choose to tell them about any and all problems you are aware of regarding the condition of the home, most likely by filling out the optional standard form described below.

Georgia Real Estate Agents Must Disclose Material Home Defects

Despite the absence of laws requiring home sellers to make disclosures, the Georgia legislature did create a disclosure requirement for sellers' real estate agents. They must disclose to home buyers "All adverse material facts pertaining to the physical condition of the property and improvements located on such property." This might include such issues as basic material defects, environmental contamination, and any facts that statutes or regulations require to disclosure of, if the agent knows about the issues and buyers could not discover them by performing a "reasonably diligent inspection of the property." (Georgia Code § 10-6A-5.)

The upshot is that if you tell your real estate agent about an unseen or non-obvious problem on your property, or if the agent notices the issues on their own (a good agent will notice property problems that the average person doesn't) the agent must share that information with buyers.

Seller Disclosure Statement in Georgia

To help avoid the possibility of a disgruntled buyer bringing a time-consuming, expensive lawsuit against you in the Georgia courts, as a home seller it's in your interest to make sure the prospective buyer is fully informed about the condition of the property. Using a disclosure statement is a good way to do this.

As noted in the beginning of this article, your real estate agent might have requested that you fill out a seller's disclosure statement for your home. Usually a real estate agent will use some version of the "Seller's Property Disclosure Statement" form prepared by the Georgia Association of REALTORS. (These can have regional variations.)

You'll find, for example, that the form asks for information about the year the house was built and how recently the roof was replaced, whether the house has been improved or added to, whether permits were obtained for such improvements, and so on. It asks whether the property is in a community governed by a homeowners' association (HOA). It asks whether the home has basic systems and components such as heating, A/C, and a water heater, and whether they are in working condition. It goes on to ask about numerous issues such as sewer backups, dead trees, underground storage tanks, flooding, pests, and so on.

Answering "Don't Know" as an alternative to "Yes" or "No" is an option for many of the questions.

What a Georgia Home Seller Need Not Disclose

A Georgia seller cannot be sued for failing to inform a buyer that a person living in or who has lived in the home has or had a disease that medical evidence shows is highly unlikely to be transmitted through occupancy. Nor can a Georgia seller be sued for failing to tell a buyer that a homicide, felony, suicide, or other death occurred on the property. (See Georgia Code § 44-1-16(a)(1)).

Even if the seller is not required to disclose an event on the property such as a murder, a seller still must answer any direct questions from a buyer honestly. So, if the buyer (who might well do a Google search on your home's address) asks you whether your home was where the gang member was murdered last summer, you do need to answer honestly.

Also, you do not need to directly answer a buyer's question if it relates to information protected under the Federal Fair Housing Act or Georgia's fair housing laws (Georgia Code §44-1-16 (a)(2)). The Federal Fair Housing Act (found at 42 U.S. Code, Sections 3601-3619 and 363), and the Georgia's fair housing laws (found in the Georgia Code at Sections 8-3-200 through 8-3-223), protect people from housing discrimination based on race, color, religion, sex, national origin, familial status, and handicap.

If, for example, a buyer asks about the previous occupant's religion, or whether a person with AIDS (considered a handicap under the Fair Housing Act) ever lived in the home, this is protected information you should not give out. You should instead reply that you are not legally allowed to answer.

Home Seller's Federal Disclosure Requirements

If you are selling a home built prior to 1978, before entering into a purchase and sale agreement you must disclose to the buyer any known lead-based paint hazards in the home. Under these requirements (found at 42 U.S. Code, Sections 4851 through 56), you must:

• provide buyers with a copy of any inspection report relating to lead-based paint hazards in the home
• give an EPA-approved informational pamphlet to buyers
• give buyers an option to conduct a lead based paint inspection or assessment, and
• include specific warning language relating to lead-based paint hazards in the purchase and sale agreement.

The required pamphlet is available from the EPA website.

Georgia Home Seller's Liability for Failure to Disclose

If you know but fail to disclose important but not readily visible facts about the condition of the house, the buyer might have a legal cause of action against you for fraud, misrepresentation, or breach of contract.

If successful, the buyer could be entitled to rescind the purchase contract. With rescission, the court attempts to put the parties involved back in the positions they were in prior to entering into the contract. So, for example, you'd be required to reimburse the buyer the price of the home plus expenses and you'd get the home back.

Or (more likely), the home buyer might elect to receive damages, in which case the buyer keeps the home, but you would be required to compensate them financially for its reduced value because of the defect, or pay the costs of repairing the defect.