[WSBARP] Why doesn't a buyer get a new three-day rescission period after discovering inaccuracy in the seller's real property disclosure statement?

[Rod Harmon]

As originally enacted in 1994, RCW 64.06.040 required a seller to amend the seller disclosure statement if the seller became aware of additional information which made any of the disclosures inaccurate.  An amendment starts a new three-business-day rescission period.  In the 2009 amendments, that requirement was amended to limit the duty to amend to situations in which "the seller ((becomes aware)) learns from a source other than the buyer or others acting on the buyer's behalf such as an inspector of additional information ... which makes any of the disclosures made inaccurate."  With that amendment, if the buyer discovered the additional information after the three-business-day period expired but before closing, the seller was not obligated to amend the disclosure statement.  For example, say the buyer discovers that the property is in an environmentally critical area and the disclosure statement says it is not. Because the rescission period had expired, the buyer would not be able to use the disclosure statute to rescind. This seems strange to me.

I can see how in that case the buyer could rescind on a common law ground, preserved under RCW 64.06.050.  Specifically, the buyer could rescind based upon a mutual mistake about a material fact, or, if the seller knew of the ECA designation, unilateral mistake by the buyer and concealment by the seller.  But I am having trouble understanding why the legislature amended the statute so that the buyer could not use RCW 64.06  to rescind the contract. I did not find anything in the legislative history that addresses it.  I would appreciate any insight anyone has into the reason for this amendment. I am hoping someone on this listserv had a hand in drafting it.

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com>
   rodharmon at msn.com<mailto:rodharmon at msn.com>





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