With the flood of foreclosed homes on the market, many agents are faced with the task of convincing the lender/seller of their statutory obligations to make certain disclosures or provide certain services. They are:

Federal Lead-Based Paint Disclosure. This is a federal rule and lenders are not exempt. Although they will try and cite the exemption to the rule that states it is not needed “…in foreclosure transactions…” they fail to realize that they are misinterpreting that rule. When they foreclose on the property; THAT is the foreclosure transaction. But, when they sell it to your buyer, they are not exempt and if the property was built prior to 1978, they must provide the disclosure.

Septic Certification. This is a state law that went into affect a few years ago, whereby upon transfer of title, any property that has an in-service septic tank must have the tank inspected and serviced and thus, certified before title is transferred. This is a statutory obligation of the seller, even a lender who foreclosed, to provide that certification, and the agents should be proactive in getting this accomplished.

Affidavit of Disclosure. Another state law, that went into affect around 2002, which requires a seller of real property that is in the county (not in an incorporated city) and never subdivided, to provide a disclosure statement to the buyer as to certain information regarding the property. The actual form itself is required by statute, so the seller must complete and sign it, have it notarized, provided to the buyer 7 days before COE. Our AAR purchase contracts change that last part to 5 days after acceptance. Once completed and signed by the buyer, the Affidavit must be recorded.

In all three cases above, the seller is obligated to provide the disclosure or service, and they cannot be waived. Even if both parties agree to waive either their rights or obligations under a statute, any such waiver would be deemed unenforceable y the courts.

Thus, the agents; both listing agents and buyers agents, must be aware of the necessity of any of the above, and be instrumental in making sure they are completed and delivered to any buyer.