Copyright 1996, Marc S. Weissman
Weiss & Weissman, San Francisco, California
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DISCLOSURE REGARDING DEATH

This Article is designed to be of general interest. The specific techniques and information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.

SHOULD DEATH ON PROPERTY BE DISCLOSED?

It is undisputed that all material facts known to the Seller affecting the value OR desirability of the property must be disclosed. Lingsch v. Savage, (1963).

Death on property has been addressed twice, once by case law, and once by statute:

Death on property may be material. Reed v. King, (1983).

Civil Code §1710.2 states that death on a property need not be disclosed if it occurred more than 3 years prior to a sale. [The statute does NOT say that a death within 3 years must be disclosed.]

If a death occurs on a property within 3 years, and the circumstances of that death are material (it was a gruesome or offensive death, or affected the reputation of the property), it must be disclosed.

[We are not considering the entirely different situation where a house has a security problem. Of course, security defects of a property must be disclosed. Rather, we are considering situations unrelated to the security of the property itself.]

Although it is not on the Transfer Disclosure Statement, many brokerage firms use Supplemental Disclosure Forms which specifically inquire about death.

Lawsuit Avoidance

If a Buyer subsequently discovers a death occurred within 3 years of the purchase, the Buyer may sue the Seller for rescission or damages.

AVOIDING LIABILITY

It is very easy to avoid this problem. Disclose if a death has occurred within the last 3 years. Don't you judge whether it is a material death. Disclose, and let the Buyer decide.

DEATHS MORE THAN 3 YEARS OLD

Civil Code §1710.2 requires disclosure of a death MORE than 3 years old, IF the Buyer asks.

BUYERS SHOULD ASK ALSO

If a Buyer is concerned about death on the property, ask the Seller if any deaths have ever occurred. Although there is no obligation to inquire about material facts since the Seller has a pre-existing duty to disclose, asking up front is easier than discovering a problem later.

AIDS DEATHS

Civil Code §1710.2 also absolves anyone from liability for nondisclosure of AIDS related deaths, regardless of how recently the death may have occurred.

DEATH OFF PROPERTY

Events on a property leading to a death off of the property, should be disclosed.

A memorandum from the California Association of Realtors (CAR) issued in June, 1990 addressed the issue of death and AIDS disclosure requirements. If you would like a copy, please call your local Board of Realtors®.

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