Why no Property Disclosure Statement in New York?

For years most attorneys representing sellers of real estate in New York State have been counseling not to complete a Property Disclosure Statement. This recent case is an example of why, in New York, the Property Condition Disclosure Statements (PCDS) can cause trouble.

Sellers in New York are required to either “disclose” what they know on a 32 question Property Disclosure Statement, or give the buyers a $500 credit in lieu of such disclosure. The problem, however, is that these property “disclosures” are mini-representations, which can lead to all sorts of claims for misrepresentation, fraud, or concealment. The question for the disgruntled buyer is always whether, when completed and delivered, the owners-sellers may be liable for buyer actual damages stemming from any willful failure to describe the property conditions asked about on the “form.”

In one recent case, the the buyers purchased a residential property from the defendants in “as is” condition after having been given notice through the form PCDS that the Sellers (defendants) of a previous kerosene leak on the property. Shortly after taking possession of the property, however, the plaintiffs discovered that the septic system had failed, the heating system was inadequately established, debris had been left on the property, kerosene had spilled in the basement, and the house was infested with mice.

Plaintiffs (buyers) filed a suit against the defendants on the grounds that the defects were not disclosed on the Property Condition Disclosure Statement (PCDS) that they had received from the defendants, and that they had purchased the property based on the PCDS.

New York’s trial level court (the Supreme Court) ruled the:

That the Defendant’s silence about any “knowing of any material defects in the septic system did not provide grounds for a remedy; that PCDS is expressly limited to the seller’s actual knowledge, and nothing in the record suggested that Defendant had any actual knowledge or special knowledge of heating systems; the Defendant did NOT make misrepresentations with respect to debris left on the property (because it was there to see); that the Seller’s disclosure on the PCDS of a previous kerosene spill effectively put Plaintiffs on notice of this condition; and there was an issue of fact on whether the Defendant had actual knowledge of the mice infestation based on her testimony she had found mouse droppings in the house and used mouse traps prior to the sale.

The bottom line: Sellers– be careful when you fill out the PCDS; Buyers, your case based upon the PCDS is limited because New York is a caveat emptor (buyer beware) state.

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