If you're planning to sell your Oklahoma home, an important provision of state law requires you to make disclosures about its condition, physical and otherwise. The purpose is to make sure that the buyer gets the benefit of the deal, and also that you do not face liability down the line. Exactly what must you disclose to prospective buyers, and by what means?
As a seller, you should familiarize yourself with 60 Okla. Stat. § 833, also known as the Residential Property Condition Disclosure Act. It says that Oklahoma property sellers must deliver to the purchaser either a "disclaimer statement" (indicating that you won't be making disclosures) or a "property condition disclosure statement," which lists defects.
The statute defines a defect as any "condition, malfunction, or problem that would have a materially adverse effect on the monetary value of the property" or that would "impair the health or safety" of its future occupants. 60 Okla. Stat. § 832.
If you choose to provide a disclaimer statement, you must acknowledge that you have never occupied the property and do not actually know of any defect there.
You might, for example, be eligible to use a disclosure statement if you bought a parcel of land or home purely as an investment or inherited it, but don't know the property intimately enough to be able to identify any physical issues one way or the other.
A disclaimer puts the buyer on notice that it is his or her responsibility to conduct a thorough inspection. Oklahoma's Real Estate Commission offers a simple, one-page Disclaimer Statement on its website. Both you and the buyer must sign the form, acknowledging that you have given it and that the buyer has received it (and you should each retain a copy!).
Most sellers of real estate have lived on the property. In that case, you must fill out a Disclosure Statement (also written by Oklahoma's Real Estate Commission). The disclosure statute is specific about what information must be included on the form, specifically whether the following items are in normal working order to the extent of the seller's knowledge:
Not every homeowner knows every inch of the home. You might think things are working that are not, or you might simply never use certain features. Fortunately, the disclosure form is clear that you must only disclose information within your own knowledge. Indeed, the bottom of the form says in bold, capitalized letters that the information contained in the form is only based on "seller's CURRENT ACTUAL KNOWLEDGE of the property."
For many of the questions, you have the option of stating that you don't know the answer. This is perfectly acceptable if it's true. Obviously, you should never say that you know something is working if you do not actually know; simply check the box for "Do Not Know If Working."
And if a certain feature isn't included in the house (for example, there is no microwave oven) you can check that last box for "Not Applicable/Not Included."
This disclosure statement is fairly comprehensive, covering most areas that would be of interest to an average buyer.
Note that the form also includes more bold language directed at the buyer that protects you as the seller: "The declarations and information contained in this disclosure statement are not warranties, express or implied of any kind, and are not a substitute for any inspections or warranties the purchaser may wish to obtain."
In other words, though the law requires you to make these disclosures honestly, the buyer is ultimately responsible for doing investigations, perhaps by paying for a home inspector to issue a report.
You can face angry buyers and possibly litigation if you fail to disclose a defect about which you had actual knowledge. Imagine, for example, that you had significant problems with the electrical system. You know that the wires are old, and that the backup generator outside is shot. At the moment you sign the disclosure form, everything is mostly working.
But the home inspector could spot the problems, and alert the buyer to the fact that you couldn't have been ignorant of them. Suddenly you're attempting to close a purchase with a buyer who has lost trust in you, and who perhaps wants a major price reduction in light of this "new" information.
Or perhaps after the buyer moves in, the power flickers on and off. The buyer hires an electrical engineer, and realizes it will cost a fortune to upgrade the electrical system, which has clearly been malfunctioning for some time. The buyer sues you for breach of contract and fraud, seeking to cover the costs of repair.
While failing to make honest disclosures might save you some trouble in the short term and result in a quicker sale, there is a potential for 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.