A topic that often raises eyebrows and curiosity in the real estate realm – Do real estate agents have to disclose deaths when selling property? As potential homebuyers and sellers seek transparency, we delve into the legal and ethical dimensions surrounding the disclosure of past events within property transactions. Join us as we navigate the intricacies of this matter, shedding light on whether real estate agents are obliged to reveal information about deaths in properties they represent.
What are real estate agents legally required to disclose
The Property and Stock Agents Act clearly states under Clause 52 states that a real estate agent must not induce any other person into any contract or arrangement by a statement, representation or promise that is false, misleading or deceptive (with or without the knowledge of the agent). Or the failure to disclose a material fact.
According to the NSW Fair Trading website. A material fact is a fact that would be important to a reasonable person in deciding whether or not to proceed with a particular transaction. In a property services context, these are facts which:
- may be sufficiently significant or relevant to influence decisions on whether to buy, sell or rent, and/or
- could impact the market value of a property.
The problem with this definition is that it is very vague and subjective. It fails to account that what’s an important factor for one person may not be an issue for another. That being said, it is the disclosure of these facts that is necessary. With that information, the buyer can make the decision of whether that impacts their decision-making. For an agent do they apply the kitchen sink approach when it comes to disclosure? Well that’s not reasonable, so how do we determine what would be necessary
What about disclosing death as a material fact
Disclosing deaths in deceased estates
Death is common without sounding too deary, the likelihood that someone has passed away in a house that is relatively old is quite likely. Deceased estates are those sales of properties where someone may have passed away within the premises recently. Generally, real estate agents will disclose these types of sales as the beneficiaries of the estate have a tax incentive to sell the property, if they choose not to occupy it. This means the beneficiaries are more likely to accept a less-than-optimal price than ordinary owner-occupiers who are prone to the endowment effect.
Death in culture
Australia is a multicultural society and the way different view death and vary quite dramatically. There is still a belief in ghosts and spirits that linger in the households after death. In Chinese culture, a property in close proximity to a cemetery is bad luck and undesirable. There have even been reports of houses being haunted with spooky occurrences. This has been the plot for many horror films. But are real estate agents required to inform buyers if a house is potentially haunted? In short, no. Simply because it comes down to proof and hard facts. It must be proven beyond reasonable doubt that a house is haunted. I couldn’t possibly think of a legal criteria for a house being haunted.
Deaths that must be disclosed
Despite the vagueness in the definition of material fact. The Property Stock and Agents Regulation 2014 Part 7 Clause 60 outlines certain situations of material fact that must be disclosed. In terms of death, Real estate agents have to disclose deaths if, within the last five years, the property was the scene of murder or manslaughter. This material fact must be disclosed. It is the only type of material fact that is explicitly disclosed in legislation. Any other material fact surrounding death is judged at the discretion of a real estate agent. It is based on what a reasonable person would consider information that would impact their decision in purchasing the property. Remember some material fact in some eyes may be considered a positive attribute and entice a buyer further to purchase the property. It is not necessarily negative.
In conclusion, the realm of disclosing deaths in real estate transactions navigates a complex landscape governed by legal and ethical considerations. While the definition of material fact might carry a degree of ambiguity, the Property Stock and Agents Regulation 2014 Part 7 Clause 60 brings clarity by stipulating certain scenarios that necessitate disclosure. Notably, the requirement to disclose a property’s involvement in murder or manslaughter within the last five years stands out as the sole explicitly mandated disclosure of death in legislation.
Beyond this, the responsibility falls to real estate agents to exercise judgment, guided by the perspective of a reasonable person, when deciding whether to reveal other death-related material facts. It’s worth noting that what some perceive material fact as a negative that could potentially enhance a property’s appeal to certain buyers. In essence, the disclosure of deaths encapsulates a dynamic interplay between legal mandates, ethical considerations, and the nuanced perceptions of prospective buyers.