Default Featured image

Do I Have to Tell Them EVERYTHING?

Real Estate Law by Simon Offord, Esq.

You are a homeowner in Palo Alto in the process of selling your home, and the question arises: What do I have to disclose to the seller about the house?  As the seller, you do not want to jeopardize your chances of selling the home by telling the buyer about some of the problems.  However, California does not follow the maxim of “let the buyer beware,” so if you want to avoid the possibility of a lawsuit in the future, the safe bet is to disclose, disclose, disclose.

California has duties of disclosure from both the common law (those prescribed by case law) and statutes (those codified by the Legislature).  These disclosure requirements arise after an offer has been accepted, but before the purchase is finalized.

Under the common law, a seller of real property has a duty to disclose all facts that materially affect the value or desirability of the property.  Only those facts that are known or accessible to the seller and not known to the buyer must be disclosed.   Examples of material facts include, but are not limited to: building code violations, easements, unpermitted improvements, offensive neighbors, or structural defects.  Additionally, if the seller is aware of a buyer’s particular sensitivities or planned future use for the property, the seller must disclose information that adversely affects such sensitivity or future use.

In addition to the common law duties, California has several statutory duties.  However, the satisfaction of these statutory duties does not relieve the seller’s common law duties of disclosure.  The statutory duties are commonly disclosed in the “Transfer Disclosure Statement,” or TDS.  The TDS is a form that the seller fills out, and should be provided by the real estate broker.

The TDS covers such information as: easements, condition and age of the roof, any features shared in common with the adjoining homeowners, unpermitted modifications/additions to the home, flooding issues, neighborhood nuisances, zoning violations, or previous damage to the home.

The disclosures in the TDS must be made in good faith.  If the seller does not know certain information,  he/she must make a reasonable effort to obtain the information. If they are unable to obtain the information, they may make an approximation if it is (1) reasonable, (2) identified as such, (3) based upon the best information available, and (4) not used to evade the statute in question.

In addition to the statewide statutory disclosures, a seller needs to also be aware of any specific local disclosures of additional items that may be required by the City or County where the home is located.    For example, Santa Clara County has certain requirements regarding private well inspection disclosures and open-space easement disclosures.  Thus, it is important the seller is aware of the local disclosure requirements, as they can vary greatly by jurisdiction.

The above information is a basic overview of the disclosure requirements in California.  If you are selling your home, and have questions about the disclosure process, the Law Offices of Peter N. Brewer would be happy to answer your questions.  The Law Offices of Peter N. Brewer can be reached at (650) 327-2900, or on the web at

Latest Posts

Marijuana & Real Estate

Navigating the Unstable World of Real Estate and Cannabis in California

by Ashlee D. Gonzales, Esq. on June 25, 2018

Marijuana legalization in California is here, but the fact that the substance is still considered illegal at the Federal level is causing some confusion and hardships for growers and sellers. Learn about how to navigate the unknown areas in attorney [more]

Legal Update, Real Estate Law

Recreational Pot In 2018: High-Times Or A Buzz-Kill For California Real Estate?

by Adam Pedersen, Esq. on November 29, 2017

California is set to roll out new guidelines implementing the voter-mandated legalization of recreational marijuana use and production in January of 2018.  At the same time, cities and counties are scrambling to implement their own regulations before the state rules [more]

Landlord/Tenant Disputes

Progress Report on Rent Control Initiatives in Silicon Valley

by Ashlee D. Gonzales, Esq. on November 21, 2017

Few topics have drawn more heated discussions throughout the Silicon Valley real estate industry than the ever-changing and increasing rent control efforts happening all across the region. From 2011 to 2016, the median wage in San Francisco, Santa Clara, and [more]