I recently worked on a file with a disclosure issue. The facts as I understand them are as follows:
The seller gave the buyer an executed Seller Disclosure prior to the buyer making an offer. The buyer reviewed the disclosure, viewed the property and made their offer accordingly. The disclosure stated that there was a pool heater included in the purchase. However, no such heater existed. Does the incorrect disclosure complicate the closing? Absolutely. But does it force the seller to provide a new pool heater to the buyer? Not necessarily.
The bottom of the disclosure, above the seller’s signature it states in part: “Seller represents that, to the best of seller’s knowedge, the information contained herein … is accurate and complete.” The pool heater was not listed on the mls sheet, nor does the contract reference the disclosure. So it appears that the disclosure is not part of the contract. So, back to the question … does the seller have to provide a pool heater?
The answer appears to be “no”, based on the fact that the pool heater was not stated in the mls sheet and the disclosure was not linked to the contract. But the questions only brings up even more questions. Was it an honest mistake on the sellers part? How could the seller not know if a pool heater was included? Whend did the buyer determine that there was no pool heater? Would the buyer have made the same offer if he knew the heater was not included? Is there a valid contract?
The lesson to learn is that seller disclosures should be used as a guide for the buyer only. They are not typically part of the contract, but rather a representation by the sellers to the best of the sellers knowledge.