One of the most noticeable changes in the real estate industry has been the proliferation of forms and standard agreements and addenda over the years.
When I entered the real estate business back in 1982, we could have listed your house with a one-sided 8 ½ x 11 inch document and sold it using a two-sided 8 ½ x 11 inch document. My clients frequently laugh when I share this story.
The Pennsylvania Association of Realtors and the Pennsylvania Real Estate Commission are both dedicated to an effort to protect the consumer when it comes to standardized forms and documents. As such, the scope and variety of these documents evolve on a constant basis. This month we will look at two state mandated forms that are required in almost every real estate transaction.
The first Pennsylvania state mandated form is known as the Consumer Notice. This form was established by the Commonwealth of Pennsylvania back in November of 1999. At that time, Pennsylvania joined forty-seven other states with some form of a Consumer Notice.
I often compare the Consumer Notice to your Real Estate Miranda rights. The document itself makes certain that the consumer immediately understands that “that this is not a contract.” It is, rather, an effort to advise consumers as to the various types of relationship that they might establish with a licensed real estate practitioner.
The first page of this two-page document largely outlines the various agency relationships that are available to a consumer. These relationships typically follow along these lines:
Seller Agent — A seller’s agent represents the seller of a property and is required to act in the best interest of the seller. In a typical residential transaction, the listing broker or agent represents the seller and has duties and obligations in their agent capacity.
Buyer Agent — Buyers are also frequently represented by their own agent. As a Buyer Agent, the responsibility is to represent the buyer of the property irrespective of how any commissions might be paid (usually by the seller).
Dual Agent — Dual Agency exists when the same Broker represent both the seller of the property and the purchaser of the same property. Dual Agency is legal and permitted in Pennsylvania provided that it is disclosed to all parties involved. Written consent is required to confirm such a disclosure. In some cases where the broker is a Dual Agent, he will “designate” agents to act exclusively for the seller and the buyer. This is known as Designated Agency.
Transaction Licensee — In very rare instances, a real estate licensee may act as a Transaction Licensee. In effect, the Transaction Licensee does not have an agency relationship with any of the consumers present in the transaction and serves primarily as a facilitator in getting the property sold. Transaction Licensees are seldom found in the practice of residential real estate and more common place in the commercial and industrial arena.
The second page of the Consumer Notice outlines all of the duties that a licensee owes to the consumer. These include rather commonsense obligations such as reasonable and professional skill, honesty and good faith, full disclosure, accountability for escrow and deposits, appropriate documentation, advice and information , etc.
It also reinforces the fact that almost all contractual terms between a licensee and a consumer are negotiable. A real estate licensee is required to present and explain the Consumer Notice to a prospective client before any “substantive discussion” pertaining to real estate in general or a property in particular. A Real Estate Recovery Fund exists within the Commonwealth for consumers who feel that they have been the victim of fraud, misrepresentation or deceit.
Seller’s Property Disclosure Statement
Shortly after creating the Consumer Notice in 1999, Pennsylvania adopted the “Real Estate Disclosure Law” in 2000.
The purpose of the seller disclosure law was to replace the long standing practice of “buyer beware.” In short, it requires a seller to provide information regarding the condition of the property that they are selling.
The Seller’s Property Disclosure Statement is to be used for all properties that are between one and four residential dwelling units. Although there are some exceptions to the Seller Disclosure requirement, the sale of an estate being one of the most common, most residential transactions will include a Seller’s Property Disclosure Statement. The statement is actually to be provided to a prospective before entering into any formal agreement of sale.
The Seller’s Property Disclosure Statement is a 10-page document which the seller is required to complete to the best of their knowledge and ability. Items covered in the Seller’s Property Disclosure Statement include:
Owner occupancy history
Condominium/Planned Community/ Homeowner Association information
Roof and attic
Basement and crawl spaces
Termite / Wood destroying insects
Additions / alterations
Domestic water heating
Air conditioning system
Other equipment and appliances
Flooding, drainage and boundaries
Hazardous substances and environmental issues
Naturally, the seller is required to be forthright and honest and to make full disclosure as to the condition of the property and any known defects. In some cases, the seller may indicate that certain systems are “unknown” to them. As discussed here previously, a buyer is well served to conduct their own home inspection and satisfy themselves entirely as to the condition of the subject property rather than relying solely on the seller’s representation.
So the industry has come a very long way with respect to “disclosure” over the past 15 years or so. The Consumer Notice has helped buyers better understand agency relationships and licensee’s obligations. The Seller’s Property Disclosure Statement has allowed buyers to better understand the condition of the property that they are purchasing and has also helped minimize post settlement disputes between seller and buyer.
As always, an experienced real estate professional can help you navigate the maze of forms involved in a real estate transaction and help you get to where you really want to be — a happy seller or happy buyer.