Release Date: 12/27/2016
QUESTION: I am the listing agent for several residential properties that were owned by an individual who recently passed away. While some of the heirs live nearby, and are familiar with the listed properties, one heir lives out of state, has not seen the listed properties in years, and has no knowledge about their current condition. The out-of-state heir consulted an attorney who advised her to sign a separate residential property disclosure statement and check the "no representation" boxes in response to every question. Would it be permissible for my seller-clients to complete multiple disclosure statements containing answers that, in some cases, will be different?
ANSWER: While we do not recommend this practice, the applicable statute does not prohibit the completion and submission of more than one residential property disclosure statement. That statute, known as the Residential Property Disclosure Act, states that the "owner" of any residential real property covered by the Act shall furnish to a purchaser a residential property disclosure statement. The term "owner" is defined to include each person having a recorded present or future interest in the real estate, subject to certain exceptions.
Where property is owned by multiple heirs, they are all considered owners, and all must sign the required disclosure statement. However, the Act does not specify that all owners must sign the same disclosure statement. Under the circumstances you have described, we think the out-of-state heir's reluctance to make any affirmative representations about the properties he now owns is entirely reasonable.
Having said that, if more than one disclosure statement is completed, and the answers given are not consistent, the inconsistencies may well be regarded as "red flags" that the listing agent has a duty to investigate. For this reason, we would encourage listing agents to have their sellers complete only one residential property disclosure statement per property whenever possible.
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