Selwyn_Times: July 13, 2022

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[Edition datE]
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What do you have to tell potential
buyers when selling your house?
When you’ve lived in a property for a
while it’s easy to forget some of its quirks.
You might be used to the fact that the
front gate doesn’t shut properly, or that
the bathroom windows need fixing. Any
potential buyers will be able to spot issues
like this when they inspect the property –
and can choose to fix them if they purchase
it. But it’s a lot harder for them to identify
other things you might have forgotten
about, like the fact that you didn’t bother
getting the appropriate consents from the
council when you built the deck 25 years
ago.
You might think the deck is fine, but you
need to front up about the consent issue,
not least because it’s the decent thing to do.
“When you’re selling a property you are
legally obliged to share all the relevant
information about it,” says the Real Estate
Agents Authority (REAA).
“If work has been done on the property
during your ownership, either by you or
someone else, the standard terms of the
sale and purchase agreement require the
seller to warrant that any legally required
permits or consents were obtained. If you
knowingly fail to disclose unconsented
works, you are in breach of contract. This
means there is a risk that the sale could fall
over or that you could run into problems
prior to settlement. Even worse, the buyer
could take you to court for breach of
warranty.”
Your first step should be to discuss the
issue with your licensed real estate agent
and your lawyer. They are likely to advise
that you are better off to disclose anything
unconsented, or to strike out the applicable
vendor warranties clause in the sale and
purchase agreement.
“Once the real estate agent is aware of the
situation, they are bound by their Code of
Conduct to disclose it to any prospective
buyers. If you tell them about the deck or
any other issues to do with the property,
but ask them not to tell anyone, they are
required to stop working for you.”
Similar disclosure issues can arise over
more sensitive matters. Some sellers worry
about whether or not to tell an agent or
prospective buyers about an issue that
doesn’t relate to the physical state of the
property – such as it being the scene of a
murder, suicide or violent crime.
Here, deciding what to disclose is less
straightforward.
“The REAA advises agents to take a
cautious approach and to consider each
situation on its facts, while recognising the
individual circumstances.”
The High Court has said that a more
recent event, especially one that might
have gained some notoriety in the local
neighbourhood, may have more bearing on
a prospective buyer’s view of the property
than a historic one. The location of the
event (whether it took place in the grounds
of the property or inside the house) and
whether the property has been lived in since
it happened, as well as the likely reaction
of potential buyers, should also be taken
into account. The death of someone from
natural causes at the property does not
need to be disclosed, as this is considered
an everyday occurrence.
“If you are in this situation as a seller, it’s
best to discuss what to do with your real
estate agent.”
“They cannot tell prospective buyers
without your consent – and if they decide
that a sensitive issue should be disclosed
but you don’t agree, then they must cease
to act for you.”
Whatever the situation, whether it’s
unconsented work or a tragic event, honesty
is the best policy. Talk to your agent about
how the disclosure will be handled. There
is no need to advertise the information
or tell everyone who wanders along to an
open home, but potential buyers who have
indicated an interest in making an offer
must be told.
For independent advice on
buying or selling property, check
out settled.govt.nz.
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