Buyer and Seller Disclosures – Are they legally required in Georgia?

I’m not an attorney, and no I didn’t stay at a Holiday Inn this week, but here’s my take on disclosures.

Although this article & resource reference states there’s a legal requirement for Seller Disclosure (I believe only when the contract introduces requirement as an Exhibit to contract), there are no up front legally required Buyer or Seller Disclosures….unless asked. (i.e., Caveat Emptor – Buyer Beware…and ask).

The most acceptable form of Buyer disclosure is normally their lender’s prequalification evidenced by written communication (i.e., letter) from the lender. If they are registered sex offenders, that may be disclosed sometime during the home buying process and preferably before the home search begins since many state/local governments regulate where they “may not” reside.

There are some legally required Seller disclosures (but not necessarily required in writing): both patent (obvious and may not be disclosed – missing appliances) and latent (not obvious and should be disclosed) property defects. Since the seller lives in/owns the property, property condition history (fire/water damage, insurance claims, crimes, major repairs, etc,.), they should be known by the seller.

The Official Code of Georgia 44-1-16 provides for disclosures under death or infectious disease, but no other disclosures.  In fact, I was just informed by another licensed agent (Realtor), since the current owners are “investors” and never lived in the home, they don’t have a seller’s disclosure statement and no list of renovations/repairs made to the property exists.  The same story is true of bank foreclosures.  It may not be fair that investors/banks don’t disclose defects found or corrected, but they’re not required by law to disclose.

In Georgia, there is no “legally” required form that seller must use to disclose any defects. A standard Georgia Association of Realtors (GAR) form, that is quite thorough, does exist and is used by most real estate agents.  However, even if the seller does disclose conditions, it doesn’t mean you ignore conducting inspections or can’t question any property condition statement the seller makes.

Sellers who intentionally or unintentionally hide defects and don’t disclose things ultimately may not be responsible after closing since the burden of proof is on the buyer to “prove” they intentionally withheld information. If you do have a home inspection, the seller may claim the inspector should have fond it, or the inspector missed the item and seller was unaware the condition existed. It’s a heavy burden of proof.

Conclusion: Nobody has proved to me that any disclosures are “legally” required unless either required when (a) certain disclosures are specifically asked, or (b) placed within the real estate contract as requirements for disclosure.

Bottom line: Ask questions, don’t believe everything you read, use common sense, require disclosures from the seller regardless whether they occupied the property, and consult legal expertise through a real estate attorney practicing in Georgia.


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