[WSBARP] HR 1951--Amendment to Seller Disclosure Statement

Wed Jan 12 14:42:24 PST 2022

Travis,

Are you saying we put a clause in the P & S that "disclaims" (Buyers cannot
rely on) all of the statements in the form 17 and that Buyers must do their
own investigation (including survey) and that they purchase this house
"as-is, with all faults"?  

Jeff

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 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.com

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Travis S. Thornton
Sent: Wednesday, January 12, 2022 2:24 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] HR 1951--Amendment to Seller Disclosure Statement

This is crazy.  I only do commercial transactions, and was opposed to the
expansion of these disclosure requirements to commercial property 10 years
or so ago.

It is generally accepted that commercial buyers waive receipt of the
disclosures to the extent legally permissible, but per 64.06.010(7), a buyer
may not waive receipt of the "Environmental" section if the answer to any of
those questions is yes. Under Section 4 of this bill, a seller is now liable
for any misstatement, and can't say "I don't know" and the disclosure is not
limited to actual knowledge.  The seller is not liable for a wrong answer
only if it relied on a professional opinion on the issue and the
professional got it wrong.  And the professionals don't definitively say,
for example, "there are no haz mats".  They only say the records they
reviewed and the investigations they performed did not reveal the presence
of haz mats above certain levels. So how does a seller definitively say "No"
when the consultant won't even say it?  A clean Phase I does not
definitively mean there are no "substances, materials, or products in or on
the property that may be environmental concerns, such as asbestos,
formaldehyde, radon gas, lead-based paint, fuel or chemical storage tanks,
or contaminated soil or water."

So now, if a seller really doesn't know whether there are any hazardous
materials in the soil, or a wet area might be classified as a wetland, or
there is water or other environmental damage, or now pest-caused damage per
this bill, that hasn't revealed itself, and the seller checks "no" when it
is later determined that the answer is "yes", the seller would be liable for
damages unless the seller hires professionals to investigate all of these
points prior to sale, and it may be liable even then.  It shifts tens of
thousands of dollars in due diligence investigation costs to the seller, and
the seller could still potentially have liability for giving what ultimately
turns out to be a wrong "No" answer.

It seems to me that won't actually happen if this bill passes, but rather
"Yes" will become the new "Don't know", and sellers will say "Yes" to all
the enviro questions with a provision in the PSA essentially saying "I said
'yes' but I really don't actually know, and you need to rely on your own
investigations," and this disclosure requirement will continue to be as
pointless in the context of commercial transactions as it has always been.

Travis S. Thornton | Attorney  
SSL LAW FIRM LLP | Direct: 206.848.6756  

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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 Catherine Clark
Sent: Wednesday, January 12, 2022 12:54 PM
To: wsbarp at LISTS.WSBARPPT.COM <mailto:wsbarp at LISTS.WSBARPPT.COM> 
Subject: [WSBARP] HR 1951--Amendment to Seller Disclosure Statement

All:

Have you seen this bill?  It is currently in committee.

It proposes significant changes to the Seller's Disclosure Statement (as
currently exists in RCW 64.06).

Thoughts?

Catherine "Cat" Clark
Law Office of Catherine C. Clark PLLC

110 Prefontaine Place South, Ste. 304

Seattle, WA 98104

Phone: (206) 838-2528
Cell: (206) 409-8938
Email: cat at loccc.com <mailto:cat at loccc.com> 

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