Disclose, Disclose, Disclose,
In my last article, I covered some of the basic, required disclosures you will encounter in your pursuit of buying or selling real estate. This time I will review some of the less well known issues that may arise.
Megan's Law came about as the result of a tragic incident in New Jersey, where a young girl was assaulted and murdered by a previously convicted sexual offender. The predator actually lived in the girl's neighborhood, but, apparently, no one knew of his past record. This federal law requires certain categories of sexual offenders to register their addresses with the local police. Each state creates a process for collecting, maintaining, and disclosing the information.
In New Hampshire, the local police keep a list of names and addresses of those who are registered. This list is available to the public for review. In most instances, it requires a trip to the local police station.
What is the duty of a licensee to disclose this information? The NH legislature has not made it a required disclosure. Realtors® have been advised by the legal experts not to go get the lists, not to download them from purported web sites, and not to make the trip to the police station in place of the consumer to "research" the issue. Instead, the advice to professionals in the real estate business has been, and still is, to make consumers aware of the availability of this information and to encourage consumers who deem this an important issue to visit the police station and personally review the list.
Why? The lists are considered to be potentially inaccurate in that these people tend to move when "discovered". Licensees are advised not to take on undue liability by representing that information they have gathered with respect to this issue is accurate. The information may change quickly and without notice.
In the "Seller's Property Information Report" form, there is a line that advises the consumer: "You should exercise whatever due diligence you deem necessary with respect to information on any sexual offenders registered under Chapter 651B. Such information may be obtained by contacting the local police department".
"Stigmatized Property" is the term used to describe property in which a homicide, other felony, or suicide has occurred. In New Hampshire, neither the owner nor the licensee has any pro-active duty to disclose this fact to a buyer. However, if the buyer requests such information and the licensee has actual knowledge of the occurrence, then the licensee has a duty to answer the buyer truthfully. If this is an important consideration for you, be sure to ask the question.
Information concerning whether or not a present or past occupant of the property has or had "HIV/AIDS", is handled very strictly under federal law. Persons with HIV or the AIDS virus fall under a federally protected class. Licensees are specifically prohibited from gathering or disclosing any information relevant to such persons' condition. The only answer a licensee may legally give if asked whether or not a present or past occupant had or has HIV or AIDS is, "I am prohibited by federal law from discussing that issue".
As a buyer, ask questions about all issues relevant to your needs, interests, concerns, and requirements for a home. Be prepared to do some leg work yourself, and be prepared to be told that some issues are "off limits". As a seller, be honest and accurate, know that there are some things you must disclose, some which are private, and certain items that that may affect your property that are entirely out of your control.
Disclosure: I am not lawyer and the above is not legal advice. For legal advice on your particular duties and obligations with respect to your particular situation, I always advise: Seek competent legal counsel!
By John Doran
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