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Haisler: Disclosing death in the home-selling process

Published: Thursday, June 19, 2014 5:30 a.m. CDT

Death is a serious topic not to be taken lightly.

It’s sad and unfortunate, and, yet, it is a reality. It affects us all differently, but how does it affect the sale of a home? A typical attorney answer of “it depends” is likely in order (although I’m not an attorney).

Let’s look at a couple of situations in more detail.

Imagine a homeowner succumbs to an ailment and passes away quietly within his home. His heirs decide to sell the home and hire an agent to list the property. In such a simple situation, there likely would be no need for any disclosure of the death within the property.

Let’s complicate that scenario and say that the homeowner died from a controversial disease. Perhaps he had HIV/Aids. How does that change the picture? It probably doesn’t.   In most situations, there would need not be any disclosure of the death or the disease within the house. This often surprises people. The logic behind it is simple: That disease is only transmitted through the passing or contact of a person’s bodily fluids. So germs in the house are not contagious. Therefore, there is no effect on the house or future owners of the home.

Sadly, murders occur in this world. How would such a situation be handled in the selling of a home that was the scene for such a crime? This gets a bit more complicated than the previous scenarios, especially considering how publicized the crime might have been.

Nonetheless, there is still no required disclosure of the deaths within the home. That being said, and with the fear of future litigation, often it might be wise to make a disclosure. Of course, an attorney should be consulted. It might be wise in this predicament to market the home without disclosure and wait for an interested buyer to make an offer. Consider making the disclosure of the homicide during the attorney approval period or during negotiations.

The thought behind this is simple. The buyer is going to find out. Hey, neighbors talk. Do you want them to know before or after they purchase the home? What if they find out afterward? Will they sue the seller and the agent? Probably. Will they win? Again, that depends – likely on whether the crime was widely known.

Was the information regarding the crime publicized? Could or should the buyer have reasonably been able to find out about the crime on their own? That’s what a judge likely will consider.

What about the agent involved? Should he/she have known about the crime in the house and should they have an obligation to disclose that to the buyer. Most often, that answer is “no.”

The agent has no duty to determine what crimes were committed within homes they are showing, or even negotiating, for their clients.

Agents do have a duty to work in their client’s best interest, and that likely would include a duty for a buyer’s agent to make the buyer aware of information that have regarding major crimes at a property, but they have no duty to go find that information. In fact, it is advised that they do not research that but rather suggest their buyer client’s do this research on their own.

A seller’s agent, on the other hand, works for the seller and, arguably, might be obligated not to disclose crimes that were committed on the premises in order to protect their client’s best interests. Sticky situations to say the least.

In short, in most situations there is no obligation during the process of selling it to disclose that a death occurred within a home. That said, there are times when it might be in the seller’s best interest to disclose, as has been pointed out here.

Discuss the situation with your real estate agent and/or attorney as early as possible.

• Jim Haisler is CEO of the Heartland Realtor Organization, a nonprofit trade group based in Crystal Lake serving nearly 900 real estate professionals throughout northern Illinois.

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