The duty of disclosure when selling a house means that a seller is required to inform the buyer of all known defects and relevant information about the property before the purchase agreement is signed. This obligation applies to facts that the buyer would reasonably want to know and that the buyer cannot easily discover on their own. In this article, we answer the most frequently asked questions about what you as a seller are required to disclose, what happens if you fail to do so, and how the duty of disclosure relates to other legal obligations.
Which defects is a seller required to disclose?
A seller is required to disclose all known defects that affect the value or use of the property and that the buyer would not discover through a standard inspection. This includes structural problems, hidden leaks, soil contamination, asbestos, or an easement that restricts use of the property.
The duty to disclose applies to facts that you as the seller know or should reasonably know. In practice, this covers matters such as:
- Structural defects such as foundation cracks, moisture problems, or a roof in need of replacement
- Legal restrictions such as easements, chain clauses, or a ground lease arrangement
- Environmental issues such as soil contamination or the presence of asbestos
- Nuisance situations such as persistent noise from neighbors or known disputes within the homeowners’ association
- Unpermitted renovations that have not been legalized
- Previous damage such as fire or water damage, even if it has been repaired
What matters is not whether a defect is visible, but whether you as the seller are aware of it. If you are unsure whether something needs to be disclosed, disclose it. Transparency prevents legal problems down the line and protects you as a seller.
What happens if a seller breaches the duty of disclosure?
If a seller breaches the duty of disclosure, the buyer may void the purchase agreement on the grounds of misrepresentation or fraud, or seek damages. The court will assess whether the seller withheld information that the buyer should have received in order to make an informed decision.
The legal consequences can be significant. In cases of misrepresentation, the buyer may have the agreement voided or amended. In cases of fraud, where the seller deliberately concealed information, the consequences are even more serious and the court may also hold the seller liable for all damages suffered.
In practice, this means that you as the seller may be responsible for:
- Repair costs for the undisclosed defect
- Diminution in the value of the property
- The buyer’s legal costs
- In serious cases: full reversal of the sale
Courts take the duty of disclosure seriously. Even if a defect has since been repaired, concealing it can be considered a breach of the obligation to inform. Always document what you have disclosed and when.
How does the duty of disclosure relate to the buyer’s duty to investigate?
The seller’s duty of disclosure and the buyer’s duty to investigate exist alongside each other, but the duty of disclosure takes precedence. If a seller is aware of a defect and fails to disclose it, they cannot rely on the argument that the buyer could have discovered it through a building inspection.
The buyer’s duty to investigate means that a buyer is expected to actively examine the condition of the property — for example, by commissioning a structural survey or consulting the local zoning plan. However, this duty does not relieve the seller of their own obligation to disclose.
The general rule is as follows: the more visible a defect is, the greater the buyer’s own responsibility. A buyer who purchases a property with visible cracks in the walls and does not commission an inspection will find it harder to hold the seller accountable for those cracks. However, for hidden defects that the seller knew about and did not disclose, the seller remains liable regardless of whether the buyer conducted an investigation.
Does a seller need to disclose information verbally or in writing?
There is no legal requirement to disclose in writing, but putting disclosures in writing is always advisable. A verbal disclosure is legally valid, but in the event of a dispute it is virtually impossible to prove that you disclosed something.
In practice, disclosures are made through:
- The seller’s questionnaire (also known as the property disclosure form), which is a standard part of the sales process
- A written addendum to the purchase agreement
- Email correspondence between the seller and buyer or their agents
The seller’s questionnaire is an important document. In it, you as the seller answer questions about the condition of the property, known defects, renovations, and legal restrictions. Complete this form honestly and thoroughly. A signed questionnaire provides you as the seller with demonstrable protection and gives the buyer the assurance that all known information has been shared.
Does the duty of disclosure apply when selling without an agent?
Yes, the duty of disclosure always applies when selling a property, regardless of whether you use a real estate agent or sell the property yourself. The obligation arises from civil law and does not depend on the involvement of an intermediary.
Without an agent, however, you face a greater risk of making mistakes. An agent helps you complete the seller’s questionnaire correctly, points out defects that you may not consider worth disclosing, and ensures that the provision of information is legally sound. Without that guidance, you are entirely responsible for what you disclose and how you document it.
Selling your home without an agent? Pay extra attention to the following:
- Complete the seller’s disclosure form fully and honestly
- Put all disclosures in writing, even if the buyer does not have an agent
- If in doubt, consult a legal advisor or notary
- Keep all correspondence relating to the condition of the property
How we help you sell your home
Meeting the duty of disclosure correctly is one of the areas where sellers most commonly run into difficulties. A mistake here can lead to lengthy legal proceedings and substantial costs. At Urban Homies, we guide you through the entire sales process so that nothing slips through the cracks.
What we do for you:
- Property valuation and a detailed, tailored marketing strategy
- Support with completing the seller’s disclosure form and other legal documents
- Professional photography and a compelling listing for your property
- Negotiation with prospective buyers and protection of your interests
- Full guidance from the initial strategy consultation through to signing at the notary
Want to sell your home with the confidence that everything is handled correctly — legally and practically? Get in touch with our team and find out how we can support you. Or read more about our sales guidance service and what we can do for you.
