As a famous Kansan once said, there’s no place like home. You know your home better than anyone. And this is precisely why Kansas requires that if you decide to sell your home, you make certain disclosures to potential buyers. Specifically, Kansas requires that sellers reveal various problems that could affect the property’s value or desirability so that buyers are not unpleasantly surprised after moving in. If you're selling your home in the Sunflower State, what must you disclose, and when?
Kansas has a number of separate pieces of legislation that require you, as a home seller, to make certain disclosures to potential buyers. Most broadly, Kansas Stat. Ann. 58-30.106 states that you or your real estate agent must disclose to the buyer: (i) Any environmental hazards affecting the property; (ii) the physical condition of the property; (iii) any material defects in the property; (iv) any material defects in the title to the property; and (v) any material limitation on your ability to perform under the terms of the purchase contract.
Unlike in some states, the legislation in Kansas does not specifically state what areas or aspects of the property require some sort of disclosure. While there is no one required disclosure form, the Kansas Association of Realtors has created a sample form that generally covers the information that you should consider disclosing to the buyer. Your own real estate agent or attorney may have his or her own form or preferences for making these disclosures.
As you can see, the three-page form assists you in disclosing a range of potential defects with various aspects of your 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 your legal title to the property (such as easements or boundary disputes), or any hazardous conditions (such as flood zones or asbestos).
Importantly, however, each section of the form contains space for "Other" defects or issues. In other words, while the form will help remind you about the various issues that may have cropped up in your home, it's up to you to make sure you are thorough and complete in making the legally required disclosures to the buyer.
Both you and the buyer will sign this form, acknowledging that it has been given and received. From your perspective, an important purpose of this exercise is to prevent the buyer from coming back to you after the closing and complaining that you never told them that there was a huge hole in the roof. Assuming you are honest on the form, you would have mentioned this sort of defect.
Separately, Kansas Stat. Ann. 58-3078a requires that the seller provide a disclosure about the presence of radon gas-- which can be cancerous--to buyers. This disclosure can be made within the purchase contract itself.
Also included in the purchase contract must be statutory language about the buyer’s ability to find information about registered persons convicted of certain sexual crimes in the area. Kansas Stat. Ann. 58-3078 provides the paragraph that must be included, which directs the buyer to the Kansas Bureau of Investigation.
Finally, Kansas Stat. Ann. 12-6a20 requires that you 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, you are required to provide the buyer with an approximation of their value (so that there are no nasty surprises after closing).
Kansas does not have specific statutory language about when exactly disclosures must be made. 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 the signing of the purchase contract).
Regardless, you should endeavor to give your buyers all disclosures before handing them a purchase contract. Two weeks is probably a reasonable ballpark. If the buyer is about to sign a thick contract and suddenly discovers a mountain of defects with the home, or the existence of radon, he or she may get spooked and refuse to sign. It is likely a smarter strategy to disclose this information before a contract is drafted and talk through any issues that might exist.
Importantly, Kansas doesn’t require you to hire an inspector or verify the information disclosed in your form.Kansas Stat. Ann. 58-30.106(2) states that sellers have “no duty to conduct an independent inspection of the property for the benefit of the [buyer].” Rather, you are required to disclose only defects that you knew about when making the disclosure.
You will also notice that the Kansas Association of Realtors sample form asks many more questions than the statute specifically requires. You are not legally required to answer every single question; just be aware that a blank space could make a buyer suspicious, and that the statute DOES require you to disclose "any material defects" within your knowledge.
You simply want to sell your Kansas house. All of these disclosures may seem to make life more complicated, since they force you to confront some potentially value-diminishing aspects of your property. Why should you be honest in making these disclosures?
First off, many of the issues with your home may emerge when the buyer does a home inspection, as is common in home sales. If the buyer discovers a number of defects that you didn't disclose, then the buyer will presume that you either lied (not good for future negotiations) or that you honestly didn't know about the problem and thus didn't factor them into your list price. Either way, the buyer is likely to come back at you with requests for repairs and/or a price reduction.
Or, if the buyer goes ahead and closes on your home without having discovered the defect, moves in, and then finds all sorts of defects that appear to have existed prior to the sale, you may be on the receiving end of a lawsuit. Not only could the buyer sue you for common law causes of action like breach of contract and fraud, but you might also face liability under Kansas Stat. Ann. 50-626, which covers “Deceptive Practices and Acts.” Buyers have used this statute to litigate against sellers who misled them in their real estate disclosures.
While failing to make honest disclosures could (if you're lucky and the buyer doesn't hire a good home inspector) save you some trouble in the short term and result in a quicker sale, there is a potential for much greater trouble down the road. The better strategy is to be fully frank and honest in your disclosures, so that both you and the buyer get the benefit of the bargain--and closure once it’s done.