When selling your home, it’s tempting to pull the wool over buyers’ eyes and not disclose information that may affect your sales price - but is it worth the risk? Non-disclosure can lead to termination of contract, fines or a potential lawsuit down the track.
Since the 12th century, consumers have had a legal right to be satisfied with the products they buy. It comes from a medieval premise, caveat emptor (or let the buyer beware), where buyers can view and handle goods such as meat or fruit in marketplaces and make their own choice about whether to buy them.
Buying property is obviously a bit more complicated than buying groceries from your local supermarket because there are greater financial risks. And times have changed with the onus of responsibility shifting subtly towards the seller.
So, what are you obligated to disclose?
Pre-contractual duty of disclosure.
Under the common law, you’re responsible for disclosing defects in your property title to potential buyers. The legislation can vary from state to state, but generally, title defects include:
Easements: a section of land registered on your property title, which gives someone the right to use the land for a specific purpose (such as a shared driveway), even though they’re not the land owner.
Covenants that may affect the use and value of your land.
Leases where the property remains under an agreement for a continued period of time after settlement.
Zoning. The legislation can vary from state to state when it comes to zoning. For example, in NSW, you’re supposed to disclose if your property is in a flood zone. In both NSW and Victoria, you should disclose if your property is in a bushfire-prone zone. And in Tasmania, if there are graves on your land.
It’s not a bad idea to hire a property solicitor or conveyancer who can help you with the legislation for your state and your duty of disclosure within your contract.
If you’ve made any renovations to your property, you need to provide the necessary code compliance or building consent certificates to show all works are up-to-date and approved.
And if neighbouring properties have applied for any permits for works to fencing, trees or buildings that affect your property, it’s a good idea to tell the buyer your position on whether you gave or withheld consent. This way, they know exactly where they stand in the event of any dispute.
Even though many buyers organise a building inspection before putting in an offer, you’re legally obligated to disclose any defects such as structural problems, damp, insect infestation or fixtures and appliances that don’t work. So ideally, it would work in your favour to clear these problems up before you put your house on the market.
When it comes to off-the-plan contracts, the requirements for what you must disclose become more complicated and extensive, especially if the property is within a body corporate or strata title scheme. In this case, there may be the need for implied statutory warranties. If you’re selling an off-the-plan property, it’s worth investing in a qualified solicitor who specialises in these types of contracts.
An accurate sales price.
Legally, property advertising can’t be misleading or deceptive. This includes underquoting your price. Underquoting happens when you advertise or advise a prospective buyer of a price that’s less than your asking price. It’s more commonly used by real estate agents trying to draw large crowds for auction, but as a private seller you can still get in trouble if you mislead buyers about your sale price.
This can become relevant if your sale price changes during your marketing campaign. Your property may show a higher level of interest than you expected and you decide to up the sales price to reflect the increased demand. In this case, make sure you amend the price on your advertising material.
It pays to be honest…
If you want to avoid trouble down the track, it pays to be honest. You can choose to fix problems before your property goes on the market, or be honest to buyers and let them factor any required works into their costs. But it's worth getting the balance right. There are some things you're not legally obligated to disclose - like neighbours from hell. You don't want to 'over-disclose' and hinder your chances of selling.
Sometimes it’s better to hire legal help to prepare your contract so you can relax knowing you’ve complied with all your disclosure obligations – especially if your sale has any unusual aspects.