[WSBARP] Estate's Duty to Disclose Decedent's (homeowner) suicide.

Sat Jan 8 15:34:20 PST 2022

It seems that this is somewhat unsettled territory. There is potential risk in not disclosing, and the only downside in disclosing is turning off some potential purchasers. In today’s hot market, why not disclose and let those purchasers pass? You can bet that there will be a neighbor(s) that tells the purchaser this information. “Oh, you are the one that bought the house where old man Smith shot himself.” You will generate more fees for the estate in dealing with complaints or worse than simply being upfront in the first place. My .02 for a Saturday afternoon.

Jennifer L. White, Esq.
[cid:image001.jpg at 01D804A3.E7120D90]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
PO Box 11037
Yakima, WA 98909
509.225.9813

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Annie Fitzsimmons
Sent: Saturday, January 8, 2022 3:07 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>; Kary Krismer <Krismer at comcast.net>
Subject: Re: [WSBARP] Estate's Duty to Disclose Decedent's (homeowner) suicide.

I agree with Sam and Kary.  Washington has not spoken as to a seller's obligation to disclose death on a property.  When this case is eventually argued, I suspect the hair splitting will come down to the significance of the Legislature using the term "material DEFECT" in the final question of the seller disclosure statement versus "material FACT" in the Agency Law.  If the Legislature wanted to limit a seller's disclosure obligation to be consistent with a broker's disclosure obligation, the Legislature could have used the term "material fact" in the seller's disclosure statement and even defined the term through reference to RCW 18.86.  But ... it didn't.  Instead, it used a different term altogether.

I would be careful telling a seller that they definitely have no obligation to disclose death on a property.

Annette T. Fitzsimmons P.S.
P.O. Box 430
Belfair, WA 98528
On 01/07/2022 6:03 PM Kary Krismer <krismer at comcast.net<mailto:krismer at comcast.net>> wrote:

I would tend to agree, but the second sentence is too broad.  The PR is exempt from doing a seller disclosure statement under the title, but not necessarily "any sellers' disclosures."

Kary L. Krismer

206 723-2148
On 1/7/2022 5:51 PM, Samuel M. Meyler wrote:
This is one that I have actually gotten a few times from brokers and sellers.  First, a personal representative is exempt from making any sellers’ disclosure.  RCW 64.06.010(6).

A broker has a duty to disclose material facts known to the broker and not apparent or readily ascertainable to a party.  RCW 18.86.030(1)(d).  That being said, death of any sort is not considered a “material fact.”  The Legislature made sure of that…

“Material fact” means information that substantially adversely affects the value of the property or a party's ability to perform its obligations in a real estate transaction, or operates to materially impair or defeat the purpose of the transaction. The fact or suspicion that the property, or any neighboring property, is or was the site of a murder, suicide or other death, rape or other sex crime, assault or other violent crime, robbery or burglary, illegal drug activity, gang-related activity, political or religious activity, or other act, occurrence, or use not adversely affecting the physical condition of or title to the property is not a material fact.  RCW 18.86.010(9).

For sellers who are not exempt from providing Form 17, Washington law doesn’t expressly require that a seller disclose any sort of death but one of the last questions of the seller disclosure statement is, “Are there any other existing material defects affecting the property that a prospective buyer should know about?”  This is usually where the concern about disclosing a death arises.

As I have advised clients in the past, whether or not a death in the residence is a “material defect” is a questions of fact that Washington courts have not ruled on.  That being said, the legislature has indicated that “murder, suicide or other death” are not “material facts” that a broker would be required to disclose and some other states have ruled on this issue.  While it is nonprecedential, Milliken v Jacono, et al. out of Pennsylvania considered whether a murder-suicide in a home was a material defect requiring disclosure based on a similar seller disclosure form to our Form 17.  Pennsylvania’s Supreme Court ruled that it was not a “material defect” and that, “psychological stigmas are not material defects of property that sellers must disclose to buyers.”  Non-binding, but worth considering.

Sam

Samuel M. Meyler
Meyler Legal, PLLC
1700 Westlake Ave. N., Ste. 200
Seattle, Washington 98109
Tel:  206.876.7770
Fax:  206.876.7771
Email:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com><mailto:wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Kary Krismer
Sent: Friday, January 7, 2022 4:18 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Estate's Duty to Disclose Decedent's (homeowner) suicide.

If the listing broker is asked they would have a duty to honestly answer and disclose what they know.  That's part of the statutory duties and also likely a Realtor ethical rule.

I'm not so certain there is a clear answer to this question as to the P.R.  It's clearly not based on Form 17, but there may be some other duty.

Kary L. Krismer

John L. Scott, Inc.

206 723-2148
On 1/7/2022 3:08 PM, Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com> wrote:
Listmates:

Probate estate is selling Decedent’s home in which decedent committed suicide.  Must a potential Buyer be informed how the owner died?

Jeff Davis

W. Jeff Davis
BELL & DAVIS PLLC
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
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