Friday, November 13, 2015


This came up in an email discussion - and reminded me of the movie Poltergeist. What is the Seller's duty to disclose the fact that, for example, there was a murder in the home, a contagious disease....or that the house is build on a burial ground and ghosts appear?

In 1995, New York State passed Section 443-a of the Real Property Law which makes the failure to disclose disease-type and crime/death-type impacts not a material defect.  Disease-type impacts protected under the statute are the AIDS or HIV status of a prior occupant, or any other disease not transmitted through occupancy of a dwelling. The crime/death-type impacts under the statute are "a homicide, suicide, or other death by accidental or natural causes, or any crime punishable by a felony."' It also prohibits causes of action against owners, occupants, and their agents for failing to disclose psychological impacts. Real estate agents and brokers are also immune from disciplinary action.

However, there is a procedure for buyers to make a written inquiry if psychological impacts are important to their decision to buy. The buyer or buyer's agent must provide the written inquiry to the seller or the seller's agent. The seller may choose whether or not to respond. If the seller chooses to respond, the seller or seller's agent must provide the response to the buyer or the buyer's agent.

So when representing a buyer - make the inquiry pursuant to RPL Section 443-a. But I don't think it covers it is in its entirety:

"1. Notwithstanding any other provision of law, it is not a material defect or fact relating to property offered for sale or lease, including residential property regardless of the number of units contained therein, that: (a) an owner or occupant of the property is, or was at any time suspected to be, infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through occupancy of a dwelling place; or (b) the property is, or is suspected to have been, the site of a homicide, suicide or other death by accidental or natural causes, or any crime punishable as a felony. 2. (a) No cause of action shall arise against an owner or occupant of real property, or the agent of such owner or occupant, or the agent of a seller or buyer of real property, for failure to disclose in any real estate transaction a fact or suspicion contained in subdivision one of this section. (b) Failure to disclose a fact contained in subdivision one of this section to a transferee shall not be grounds for a disciplinary action against a real estate agent or broker licensed pursuant to this article. (c) As used in this section, the terms "agent", "buyer" and "seller" shall have the same meanings as such terms are defined in section four hundred forty-three of this article. 3. Notwithstanding the fact that this information is not a material defect or fact, if such information is important to the decision of the buyer to purchase or lease the property, the buyer may, when negotiating or making a bona fide offer, submit a written inquiry for such information. The buyer or the agent of the buyer shall provide the written request to the seller's agent or to the seller if there is no seller's agent. The seller may choose whether or not to respond to the inquiry. The seller's agent, with the consent of the seller and subject to applicable laws regarding privacy, shall report any response and information to the buyer's agent or to the buyer if there is no buyer's agent. If there is no seller's agent, the seller shall inform the buyer's agent, or the buyer if there is no buyer's agent, whether or not the seller chooses to provide a response. 4. This section shall preempt any local law inconsistent with the provisions of this section."

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