Did you know that a Seller’s Disclosure Statement is not mandatory in WA? Despite this however, there is an expectation that a seller should disclose any material facts that could affect a potential buyer’s decision to buy. That’s because a buyer can always request to have a Seller’s Disclosure Statement completed. Furthermore, if you put yourself in the buyer’s shoes, the last thing you would want is to move in to your new home only to discover an issue, like asbestos, a non-compliant pool or that the home had once been used as an illegal drug lab and could potentially still be contaminated.
So what is deemed a ‘material fact’?
A material fact in real estate is defined as a fact that, if known, might have caused a buyer or seller of real estate to make a different decision with regards to remaining in a contract, or to the price paid or received. In practice however, it is a grey area. On the one hand agents are obliged to operate in the seller’s best interest and sell their client’s home at the best possible price. But on the other hand, they are also legally required to share material facts that are relevant to the sale of the property.
Why disclose if I don’t have to?
Honesty is always the best policy. Be honest with your agent from the start. Moreover, if you fail to disclose a serious problem with the property and it is discovered later, you risk being fined and even jail time. It’s just not worth the risk.
While the rules in WA are quite relaxed when it comes to seller disclosure, the Australian Consumer Law (ACL) has provisions that make it an offence to mislead or deceive parties to a contract. So disclosure is your safest bet.
Here are eight material facts that you should disclose to your agent before you sell.
Asbestos has known negative long-term health effects. If your property has, or could have asbestos, it is perfectly legal to still sell it, but make sure you disclose this as it could result in you getting sued if you don’t and the buyer or someone in their family becomes ill as a result of asbestos contamination.
2. Illegal drug contamination
Like asbestos, illegal drug contamination is a potential health hazard. If you know that there is or was contamination of the property through its use as an illegal drug lab, you should disclose this information to the agent. Residents of a property used for the manufacture of methamphetamine for instance can become seriously ill due to the residue that remains and is very difficult to remove. For more information, read Illegal drug activity in homes.
3. If a serious crime was committed on the property
People expect to be told if a serious crime – like a murder – was committed on the property, especially if they are thinking of buying it. Although you may argue that it happened a long time ago so why would it matter now, it is still important to disclose this information if it is known to you, as it may well matter to one buyer but not another.
4. If the property is currently tenanted
If your property is currently tenanted, it is important to disclose this information to the agent and all prospective buyers. The standard term to a contract is that the buyer will have vacant possession at settlement. If there is a lease in place, then it needs to be a condition of the contract.
5. Registration details of a pool and/or spa
If you are selling a property with a pool and/or spa, whether you installed it or it was there when you bought it, you must be able to show the pool certificate that was registered with your local council. The WA Government also has strict rules in place regarding pool and spa barriers (fencing). If you don’t have a certificate for the pool or spa or you are unsure whether or not your pool fences are compliant, let your agent know.
6. Building approvals
It is recommended that you let your agent know if you have extended or renovated any part of your property without obtaining council approval. Most renovations or extensions need to have the correct up-to-date certificates.
If any structures, including dividing fences, encroach onto your neighbour’s property (beyond the boundary of your property) let the agent know.
8. Sewer pipe or cable
If you know that a sewer pipe or cable passes through your property (unless it is strata title) to provide services to other land you must disclose it.
For more information on what should be disclosed when selling and why, visit the WA Department of Consumer Protection website.