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Paralegal 101: Disclosure

In my previous post entitled Paralegal 101: Stigmatized Property, I stated I would not disclose my seller's medical condition. The laws of New York State are pretty clear cut about the fact that a hypothetical seller possibly with HIV is not a material defect regardless of a buyer's personal emotional preferences regarding the subject.

I quote § 443-a. Disclosure obligations:

"1. Notwithstanding any other provision of law, it is not a material defect or fact relating to property offered for sale or lease, including residential property regardless of the number of units contained therein, that: (a) an owner or occupant of the property is, or was at any time suspected to be, infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through occupancy of a dwelling place; or (b) the property is, or is suspected to have been, the site of a homicide, suicide or other death by accidental or natural causes, or any crime punishable as a felony."

"2. (a) No cause of action shall arise against an owner or occupant of real property, or the agent of such owner or occupant, or the agent of a seller or buyer of real property, for failure to disclose in any real estate transaction a fact or suspicion contained in subdivision one of this section. (b) Failure to disclose a fact contained in subdivision one of this section to a transferee shall not be grounds for a disciplinary action against a real estate agent or broker licensed pursuant to this article. (c) As used in this section, the terms "agent", "buyer" and "seller" shall have the same meanings as such terms are defined in section four hundred forty-three of this article."

"3. Notwithstanding the fact that this information is not a material defect or fact, if such information is important to the decision of the buyer to purchase or lease the property, the buyer may, when negotiating or making a bona fide offer, submit a written inquiry for such information. The buyer or the agent of the buyer shall provide the written request to the seller's agent or to the seller if there is no seller's agent. The seller may choose whether or not to respond to the inquiry. The seller's agent, with the consent of the seller and subject to applicable laws regarding privacy, shall report any response and information to the buyer's agent or to the buyer if there is no buyer's agent. If there is no seller's agent, the seller shall inform the buyer's agent, or the buyer if there is no buyer's agent, whether or not the seller chooses to provide a response."

"4. This section shall preempt any local law inconsistent with the provisions of this section."

Seeeeeeeeee... I was not just being a cheeky monkey. I am a Real Estate Paralegal. I actually know what I am talking about (LOL). ;-)

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Comment balloon 10 commentsC Tann-Starr • October 11 2010 02:38PM

Comments

If you were asked in writing as provided for in paragraph 3, would you recommend ignoring the request, or answer the question?

Cheeky Monkey?

Posted by Brian Rugg, Sun City TX Real Estate - Georgetown, TX Real Est (Rugg Realty LLC Sun City Texas 512-966-3200) over 7 years ago

Brian, if asked in writing my job is to promptly forward the request and transmit the client's response (or lack thereof) whether pro or con, not to make any type of determination one way or the other. This is a situation where we get to possibly play messenger and not have an opinion. To cover my broker I would ask the person who is asked to answer any questions to do so in writing. People tend to forget stuff down the road. Besides, the statutes of fraud regarding real estate transactions require stuff to be in writing. If it goes to court you are gonna want to have that in the client file,whether they answered or declined to answer. Seriously. :-)

If they decline to answer, it helps to get them to write that on the actual request submited, with a date and signature for your file. People can forget they actually read something when time goes by.

Posted by C Tann-Starr (Tann Starr & Associates, Inc.) over 7 years ago

Wordy,

The problem with bad law is we have to comply with it.

Would you show a property occupied by some one with active TB?

We don't think AIDS/HIV can be transmitted casually, but there's nothing casual about a persons bathroom! Do they disinfect it? Would you knowingly let your clients use it? Would you use it? Unlike public rest rooms most home bathrooms are where every litty routine cut or abrasion is treated. Where do you keep the banaids and peroxide?

Talk about being caught between a rock and a hard place!

Remember the golden rule and think about your minions.

Bill

 

Posted by William J. Archambault, Jr. (The Real Estate Investment Institute ) over 7 years ago

Bill, the first thing I learned as a rookie correction officer was to suspend judgment in order to function. It was a very hard lesson to learn because you don't realize you are judgmental until advance training exposes your personal quirks and bias. I had a lot of them then and have new ones now (LOL).

Since I don't know over 7 million NYC residents, I have to have faith in God that when I go to Starbucks I am not being exposed to a disease or poisoned by contaminated organics and that when my kids go to Chuck-E-Cheese or another fast food playground that a bite from a naughty toddler doesn't give them Hep C or HIV.

There are people who have no idea what they are carrying or transmitting because they don't have health insurance and haven't seen a doctor. I treat everybody the same, virus or no, because germs don't stop and say "Ooops, that's Wordy C - go to the next victim" (LOL). I do my best to stick to the bathrooms that I know but I will confess we have stopped shopping and gone home simply because Stephen said he had to pee (LMAO).

I have been in spotless and messy homes where the person eventually has decided to reveal they are HIV positive. People never blurt that out immediately. They tend to tell people they trust.

I've had people go to their graves who never told me that I knew for years. They were afraid to tell even the people they loved.

Do buyers really think sellers are just going to answer this question on demand for a stranger?

Posted by C Tann-Starr (Tann Starr & Associates, Inc.) over 7 years ago

Wordy,

I don't believe sellers are going to answer such a question. But, your post assumed the listing agent knew.

Over 20 years in Las Vegas I've know many who tested positive, I only know of two that have died. One a major real estate broker, the other the partner of a friend's son. But, I'm still very concerned any place where they may have bled. Scratches happen.

Bill

Posted by William J. Archambault, Jr. (The Real Estate Investment Institute ) over 7 years ago

Bill, some do know and some don't. Whether I know or not I don't tell.

I let people decide what to divulge and require they themselves make that decision without any influence on my part. The moment people ask for a "should I / what do I do?" opinion regarding this issue I tell them it's their call and/or send them to their real estate attorney and wait for the yes / no instructions.

If yes, I require they put it in writing for the file with a date and signature. People sometime forget if it's a brief, verbal casual chat on the phone. That "yes" for A doesn't mean a "yes" for B. The client has to determine their response for each request. They may not mind answering the guy from out of state but might have a different attitude towards the gossiping neighbor renting next door who shows an interest in buying their home.

What about HIV brokers who don't tell their clients, staff or contractors?  

I respect everyone's right to privacy because we all have issues. Some more pressing than others... Scratches do happen. Sometimes paper cuts at the copier machine...

Posted by C Tann-Starr (Tann Starr & Associates, Inc.) over 7 years ago

Wordy,

I've never been afraid of positive people I knew, just cautious.

There's little in day to day brokerage that would make them dangerous, I'm more worried about the flue!

Bill

 

Posted by William J. Archambault, Jr. (The Real Estate Investment Institute ) over 7 years ago

LOL @ Bill. :-D

Posted by C Tann-Starr (Tann Starr & Associates, Inc.) over 7 years ago

If the law states we do not have to disclose and it's our clients wish that it not be disclosed, our duty is to the client.  The issue of a family murder at a listing came up at our office and the law states that we did not need to disclose.  Thankfully I didn't represent anyone in that transaction but it was clear that the listing agent, while feeling like she should disclose, did not have an obligation to do so.  In fact, doing so would have harmed her client, the seller's chance of selling the home. 

Posted by Susan Mangigian, Chester & Delaware County Homes, Delaware and Ches (RE/MAX Preferred, West Chester, PA, RS152252A) over 7 years ago

Susan, very well said. Our duty is always to advocate the best interests of our clients within the confines of the law. :-)

Posted by C Tann-Starr (Tann Starr & Associates, Inc.) over 7 years ago

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