Colorado Seller’s Property Disclosure Form—Disclosure Requirements
When you sell a home in Colorado, you need to make disclosures under the terms of the Seller’s Property Disclosure statement. This statement is part of the form contract called the “Contract to Buy and Sell Real Estate” that has been approved by the Colorado Department of Regulatory Agencies (DORA) – Division of Real Estate. The forms can be found on DORA’s website.
There are several important considerations that all sellers, buyers, and agents should know about the Seller’s Property Disclosure form. Confusion about the contents of this form often leads to subsequent litigation either because the seller did not appreciate the full extent of their obligations or the buyer believed that the seller’s obligations were greater than they really are.
The 2018 Seller’s Property Disclosure form has been revised to address many of the past issues that have arisen in seller disclosure lawsuits. The form makes clear that the seller is only responsible for “seller’s current actual knowledge” and is not responsible for facts that the seller “should have known” based on “common knowledge” or “constructive knowledge.”
This is a critical distinction because it suggests that the seller cannot be responsible for non-disclosure if the seller did not actually know about the problem—no matter how obvious the defect should be to an ordinary person.
For example, even if the home wreaks of mold, the seller may not be responsible unless the buyer can prove that the seller actually knew about the mold. This rule is particularly problematic when the seller did not live in the home because the seller may have very little actual knowledge.
5 Things You Should Absolutely Disclose
- Any foundation issues of any kind (and repairs to fix the issue)
- Any roof leaks (and repairs to fix the issue)
- Any window leaks (and repairs to fix the issue)
- Any major mechanical problems such as plumbing, heating, and air conditioning (and repairs to fix the issue)
- Any flooding and the cause of such flooding (and repairs to fix the issue)
Tip – If flooding was due to a one-time event – disclose that information. Flooding can be caused by a refrigerator or washing machine leaking, but it could also be caused by a major problem with the home. Why the flooding occurred matters.
Knowledge of Known or Repaired Issues and Defects
While the Seller’s Property Disclosure form protects the seller in many ways, it also places a duty on the seller to be transparent with respect to known defects. The most common mistake that sellers make is to assume that they have no obligation to disclose previous problems that were repaired and “fixed.”
The 2018 Seller’s Property Disclosure form makes this absolutely clear by stating in bold, capital letters: “if you know of any of the following problems EVER EXISTING check the ‘yes’ column.” This means that even if the issue was repaired, the seller must still disclose the problem.
There is a common sense explanation for this requirement because buyers are entitled to assess whether the repair was adequate and to investigate it further. This is especially true if the issue is latent or concealed. Without disclosure of a past issue and the repair, the buyer will have no way to assess its effect on the home. This requirement exists for almost every category of disclosure, including past legal, zoning, or environmental issues. For example, if the home was raided in the past by the police due to an illegal marijuana operation, the seller must disclose this even if the problem no longer exists.
Tip: Do Not Rely on the Seller to Disclose Things—Ask!
- If you have a concern about the property, ask the seller what they know. In subsequent litigation, a buyer has a much stronger case when they asked about a specific part of the home and the seller made a misrepresentation. If you stay silent, the seller could always argue that they had no idea it was an issue and has no “actual knowledge.”
- Conversely, if you are a seller, make sure you provide full disclosure so when an issue arises, you can say that you told the buyer and they assumed the risk.
In addition to the disclosures discussed here, there are other disclosures that you should be aware of including disclosures that are required by state and federal law. For example, whether the home was a meth house, whether the home has a source of potable water, and whether the home is part of an HOA / common interest community are all disclosures that need to be made.
Although these disclosures are required by law and you should engage a real estate broker or attorney, the disclosures that cause lawsuits are the ones related to leaks and other water-related problems (i.e. mold, roof leaks, window leaks, flooding, etc.).