Selling a Pennsylvania Home: What Are My Disclosure Obligations?

If you're planning to sell a house in Pennsylvania, you might be focused on spiffing it up and marketing it. Realize, however, that you'll also need to tally up the house's problems and be ready to present them to the buyers in writing, in accordance with state law. That's what we'll cover here, including:

• an overview of Pennsylvania's law regarding home seller disclosures
• which Pennsylvania home sellers need not fill out a disclosure form
• what form Pennsylvania sellers can use to make property disclosures, and tips on filling it out
• how far home sellers must go in advising Pennsylvania buyers of every little home defect
• added expectations of home sellers with expertise in engineering, architecture, and so on
• timing of filling out the disclosure form
• federal disclosure requirements relating to the presence of lead in the home, and
• legal risks for failure to disclose home defects to buyers.

What Pennsylvania Law Requires Home Sellers to Disclose

Pennsylvania sellers of homes and individual condominium units must, by law, advise potential buyers of the property about "known material defects" that are not readily observable, including structural problems, hazardous substances, and more, before the sale is completed. (See the Pennsylvania Real Estate Disclosure Law or "RESDL" at 68 Pa.C.S. §§ 7301-7314.) The object is to make sure the buyers aren't left unassisted in their efforts to understand the condition of the property, and to discourage sellers from hiding any flaws or problems.

In fact, Pennsylvania's statutes specifically list the items the seller must tell the buyer about (49 PA ADC § 35.335a), and gives exact language for the form.

Not All Pennsylvania House Sellers Must Make Disclosures: Here's Who Doesn't Need To

The legislature exempted certain sellers from the disclosure law, mostly those who never lived in the house in the first place and thus wouldn't be familiar with its defects, including:

• transfers by a fiduciary who are administering a deceased person's estate, a guardianship, a conservatorship or a trust, and
• transfers of new residential construction where no one has lived in the place before.

What's on Pennsylvania's Property Disclosure Statement

Most Pennsylvania home sellers use the Pennsylvania Association of Realtors version of the Seller's Property Disclosure Statement. It lists not only the minimum statutory questions, but additional ones.

The standard form is primarily devoted to providing information about the home's structure, such as the roof, basement, foundation and walls. The form asks the seller to let buyers know if the house has been treated for termites or has had water, rot, or sewage problems. Buyers need to be told if the house has been remodeled. Buyers also need to know whether the plumbing, electrical, heating and air conditioning systems are in good, working order.

If appliances and other equipment are included in the sale, then the seller needs to be honest about the condition of these appliances. If there are hazards or environmental contaminants on the property, the seller must disclose these as well. If there are any title, insurance, legal, or financial issues, or any deed restrictions that apply to the property, the seller must note these.

And just in case anything got left out, the form includes a section for "Additional Material Defects," where sellers are expected to disclose anything that didn't otherwise fit the categories on the form.

Most questions can be answered "Yes," "No," or "Unknown." Some sellers might be inclined to use "Unknown" as an escape hatch, but in the event of a lawsuit, this could backfire if a defect is one that someone living in the home should have noticed or can be proven to have, in fact, noticed. You're expected to provide information to the best of your knowledge, and to follow up if you later find out more about the issue on your property.

What Types of Defects Are Not Included in Pennsylvania's Standard Disclosures?

The Pennsylvania courts have been clear that the concept of the disclosure applies only to things that can be repaired and have a fixed cost associated with the problem. But what if the house had something bad happen in it? For instance, what if the previous owner died of natural causes in the bedroom? Or a murder/suicide or a rape occurred in the house? Is this type of psychological damage or "stigmatization" something Pennsylvania sellers are expected to disclose to buyers?

The Pennsylvania Superior Court found (in a case called Milliken v. Jacono, 2012 PA Super 284), that sellers do not have to disclose this type of information to buyers. The house at issue had been the site of a murder/suicide, which the sellers had purchased from the deceased owners' estate. Despite court decisions in other states holding that psychological damage did need to be disclosed, the Pennsylvania court came to the opposite conclusion. So, in Pennsylvania, the law continues to require sellers to disclose only identifiable damage.

Another example of what is not included: what the neighbors are like. Even though the presence and activities of neighbors can have a significant impact on someone's use of your property, the fact that the neighbors are, for example loud, prone to holding frequent parties, or are actually part of a group home for mentally challenged adults, would not be things that sellers must disclose.

Also, defects that are not "material" do not need to be disclosed, as discussed next. Not all problems in a house are equally serious. A leaky sink that just needs something tightened is dramatically different than a crack in a plumbing pipe that needs to be completely replaced (though the seller should consider fixing such things before marketing the property). A material defect is, according to the law, one that could have a "significant adverse impact on the value of the property or that involves an unreasonable risk to people on the property." (See 68 Pa.C.S § 7102.)

The law also notes that when a structural element, system, or subsystem is near at or beyond the end of the normal useful life, that is not by itself a material defect.

As a practical matter, sellers are usually best advised to disclose any defect that they're not sure whether to call "material" or not—or to fix it before completing the disclosure form.

Pennsylvania Home Sellers With Professional Credentials Might Be Expected to Know About More Defects

Some defects are hard to find, or are just not noticeable to people untrained in construction and building. This raises the question of how much the seller should be expected to know and thus disclose. Under Pennsylvania law, the answer depends on exactly how much relevant expertise the seller has. In fact, it requires that the seller disclose, on the form, their level of knowledge and training in the areas of engineering, architecture, and other areas related to the construction and condition of property. (See 68 Pa.C.S § 7304.)

So, if you are a seller who has professional expertise in a related area, you will be held to a higher standard of disclosure than a home seller who has no experience in a related field—that is, you won't readily be able to claim that you didn't notice a problem that anyone with your background should have noticed, even if a layperson wouldn't have. This also benefits the nurses and graphic artists of the world, because without relevant professional expertise, they are limited to disclosing only those things that they actually know about.

In either case, however, the seller is not required to complete any investigation or analysis of the property in order to complete the disclosure form. Still, sellers should be careful about trying to hide behind a lack of knowledge. The law specifically states that "the seller shall not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading." (See 68 Pa.C.S § 7308.)

For example, let's say Tony and Carmela sell their three-bedroom, two-story house so they can move to the suburbs. Months after the sale closes, they find out the new owner is experiencing water problems in the basement. The couple rarely went to the basement when they lived in the house and had no knowledge that problems were, in fact, developing down there. They would not be liable to the new owner for failing to mention water problems on their disclosure form. It would be the same story if a minor leak had once developed in the slab, but they'd had this portion replaced and believed that the problem had been completely corrected. But Tony and Carmela might, arguably, be found responsible if their neighbor had once said, "Hey, did you notice you can see boxes floating around at window level in your basement" and the couple failed to look into the matter.

Timing of Giving Pennsylvania Disclosure Form to Home Buyers

The home seller must, according to Pennsylvania's statute, give a disclosure statement to the buyer, filled out, before both of them sign the real estate purchase agreement. Sellers can send it to the buyer or the buyer's real estate agent via personal delivery, first class mail, certified mail with return receipt requested, or fax. (68 PA C.S. § 7305(a).)

Federal Law Requires Disclosure Regarding the Presence of Lead in the Home

If a home was built prior to 1978, federal law requires the seller to disclose all information regarding lead-based paint and provide a pamphlet on identifying and controlling lead-based paint hazards. More information can be found on the Environmental Protection Agency website.

What Are the Legal Risks for a Pennsylvania Seller Who Fails to Disclose a Defect?

If the sellers of a Pennsylvania property do not tell the buyers about known problems with it, they can be found responsible for the costs of the repair as well as other actual damages the buyer suffers. The law will not, however, allow the buyer to claim punitive damages. (See 68 Pa.C.S § 7311.)