When you purchase real estate in Kansas, state and federal laws may require the seller to make certain disclosures about defects in the property and other potential issues that may affect the value of the property. Buyers often ask our Kansas real estate lawyers at Sloan Law Firm what they can do if a seller falsifies the property disclosure statement. In this discussion, we explain the basics of Kansas seller property disclosure laws and provide an overview of what a buyer can do if a seller fails to comply with those laws.
Kansas statutes do not impose a duty to disclose on real estate sellers, but common law principles apply if a seller does provide a property disclosure statement. If the seller opts to provide a disclosure statement, common law imposes a duty to make accurate disclosures. To some extent, there also is an obligation on the seller to disclose material defects if the seller is aware of a material defect that cannot be reasonably discovered by a buyer or the buyer’s inspector.
Specific state and federal laws do require disclosure of lead-based paint (for properties built prior to 1978), asbestos, radon, presence of convicted sex offenders in the area, and the existence of any special assessments, such as taxes or other government levies.
Typically, the buyer receives a property disclosure statement as part of the sales agreement (also called the contract of sale), the document in which the buyer and seller agree to the sale at a specific price. Some disclosures may be in the terms of the contract itself, but most disclosures are contained in a separate statement (addendum) that is part of the contract. Both the seller and buyer usually sign the separate disclosure statement to acknowledge that it was provided and received. A seller may provide — and the buyer should request — a copy of the disclosure prior to execution of the contract of sale.
Unlike some states, Kansas law does not require a standardized seller property disclosure form, although real estate agents often use a form designed to encompass standard disclosures. A potential buyer should always carefully review each item in any disclosure statement provided by a seller.
If a problem arises relating to the seller’s disclosures, your rights as a buyer depend largely on the nature of the issue and when you discover it, and whether the seller provided a property disclosure statement. Talking with an experienced Kansas real estate lawyer is the only way to know with certainty what legal rights you have — but there are general guidelines to help you decide on a strategy and course of action.
If you discover the problem before you sign the contract of sale, you can simply refuse to sign the contract and walk away from the purchase. You also may choose to use the issue to negotiate or renegotiate the terms of the sale and price. Before you take the latter action, you should discuss your situation with a real estate attorney, to make sure your legal rights are fully protected if you decide to go through with the purchase.
If you discover the issue during an inspection that occurs after you sign the contract of sale but before you close on the property, you may be able to void the contract of sale. Whether you have a legal right to do that depends on the terms of your contract and the nature of the issue. In the alternative, you may want to try to renegotiate the terms of the sale. In either case, you should talk with a real estate lawyer before taking action to avoid putting yourself at legal risk.
Finally, if you do not discover the problem until after you close and take possession of the property, you may have several different legal options, depending on the nature of the problem and circumstances surrounding it. For example, if your pre-closing inspection did not discover the problem, and the seller did not disclose the problem or hid some problem with the property, you may have a claim. While Kansas law does not provide specific remedies for a seller’s failure to disclose, you may be able to pursue a lawsuit for financial reimbursement based on general principles of equity and contract law. In some situations, your legal rights may also include the possibility of basing a court action on fraud or misrepresentation or violation of another Kansas law, such as the Kansas Consumer Protection Act, if the seller was a company or business. If you discover an issue with the seller’s disclosures after you take possession of the property, it is absolutely essential to discuss your circumstances with a knowledgeable Kansas real estate lawyer before you decide how to proceed or take any action.
From our offices in Topeka and Lawrence, our respected real estate attorneys at Sloan Law Firm assist clients throughout Kansas with all aspects of residential and commercial real estate sales and purchases, including matters involving breach of contract, fraud, misrepresentation, and other violations of Kansas laws relating to seller disclosure. We invite you to contact us by calling (785) 357-6311 or using our online contact form.