Most states require home sellers to disclose known material facts about the property. What exactly must be disclosed varies considerably, and this is an area where getting it wrong has consequences well after closing — so treat this as an overview and check the requirements where your property is.
What “Material Fact” Means
A material fact is something that would influence a buyer’s decision to purchase or the price they would pay. The obligation generally covers what you know, including problems that are not visible — which is precisely why the duty exists. Buyers can see peeling paint for themselves; they cannot see that the basement floods every spring.
- Condition — roof leaks, flooding or water intrusion, foundation or structural problems, and issues with heating, cooling, plumbing or electrical systems.
- Repairs and their history — what has been repaired, when, by whom, and whether the underlying problem recurred.
- The age of major components — roof, furnace, water heater, air conditioning.
- Environmental hazards — mold, asbestos, radon, underground storage tanks, contaminated water.
- Pests — termites and other wood-destroying organisms, and any treatment history.
- Legal and title matters — boundary disputes, easements, encroachments, liens, HOA obligations and pending assessments, and any litigation involving the property.
- Permits — work done without required permits, which becomes the buyer’s problem and then their buyer’s problem.
- Square footage and boundaries — a common source of disputes, so use a documented figure rather than an estimate.
- Defective products — components subject to recalls or class actions.
The Federal One: Lead-Based Paint
Most disclosure duties come from state law. One does not. For residential property built before 1978, federal law requires sellers and landlords to disclose known lead-based paint and hazards, provide any records or reports they have, and give buyers the EPA-approved information pamphlet. Buyers must also be allowed a period — generally ten days unless the parties agree otherwise — to conduct their own lead inspection or risk assessment.
This one has real penalties attached and applies regardless of how the property is sold, including by owner. If your home predates 1978, make sure the lead disclosure is part of your paperwork.
“As Is” Does Not Mean “Say Nothing”
Selling a home “as is” means you are not agreeing to make repairs. In most states it does not relieve you of the duty to disclose known material defects, and it does not protect a seller who actively conceals a problem. Painting over a water stain or hiding damage behind furniture can turn an ordinary sale into a fraud claim.
Why Full Disclosure Is in Your Interest
Sellers hesitate, fearing that disclosure kills the sale or the price. Usually it does neither, and the alternative is worse.
A buyer’s inspector will find most significant defects anyway, and finding something you did not mention costs you far more than the repair — it damages trust at the exact moment the buyer is deciding whether to proceed. Disclosed upfront, a known issue is priced in and moved past. Discovered later, it becomes a renegotiation, a collapsed sale, or a claim after closing, when your ability to resolve it cheaply has gone.
Practical guidance: disclose in writing rather than in conversation, keep a copy of what you gave the buyer and when, and if you are unsure whether something qualifies, disclose it. Over-disclosing costs almost nothing. Under-disclosing is what produces lawsuits.
A pre-sale inspection helps you complete the disclosure accurately, and getting the form reviewed by a real estate attorney is cheap insurance on the largest transaction most people ever make.
