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

[Catherine Clark]

I have alerted friends who work with brokers to the issue.  I’ll be offering a report to the WSAJ (where I am also a member) as part of its legislating efforts this year.  If you’d like your comments included (either anonymously or with credit), please let me know.

My thought is that while this is all a nice try, it doesn’t matter because of the application of the economic loss rule (alejandre v bull) and its molting into the independent duty doctrine.  Under Carlisle homes, fraud survives such a challenge but negligent misrep and innocent misrep were dispensed with.

Seems to me that if you want to give the buyers some help, and limit the impact of Douglas v Visser on Buyers (holding that where a buyer has notice of a defect, they have a duty to make further inquiries of the seller in a fraudulent concealment case; similar to the duty to inquire if you find something funny recorded), you would do the following:


  1.  Remove the “sellers actual knowledge language”
  2.  Keep the “don’t know” option.
  3.  Add another section that a buyer of real estate may make claims of fraud, negligent misrepresentation or innocent misrepresentation as a way out of Alejandre et al.
  4.  Add another section that the buyer has the right to rely on the statements made in the disclosure statement and need not inquire further (this exists in the common law as I understand it when an affirmative statement of fact is made—there are other cases on this).

All comments welcome.

Thank you.

Catherine C. 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>

NOTICE: The information contained in this electronic information transmission is confidential. If you are not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is prohibited. If you received this communication in error, please immediately notify the sender by telephone at (206) 838-2528. Thank you.

From: Kary Krismer<mailto:Krismer at comcast.net>
Sent: Wednesday, January 12, 2022 3:31 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HR 1951--Amendment to Seller Disclosure Statement


But for the statute eliminating the "don't know" it could be argued that a form with "don't know" is substantially similar.  The statewide forms have added "n/a" and are presumably compliant.

But this is F'n absurd!  There are some questions I thought should be amended to eliminate "no" as a possible answer.  For example does the property contain fill dirt.  There is no way an owner who didn't see the property being developed would know it didn't contain fill dirt, unless maybe someone told them.

It may be that sellers will simply have to quit providing this form and risk a buyer backing out.

A better solution would be to have greater explicit buyer rights to ask questions of improperly filled out questions.  That would put more pressure on sellers to fill out forms correctly.

Finally, the legislature really needs to get someone who knows something to work on these issues.  The change that just went into effect about internet service (which was hardly a pressing issue) requires the exact same answer for a property that has no internet service available as one that doesn't currently subscribe to internet.  How does that help the buyer?

Kary L. Krismer

206 723-2148
On 1/12/2022 12:53 PM, Catherine Clark wrote:
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>




NOTICE: The information contained in this electronic information transmission is confidential. If you are not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is prohibited.  If you received this communication in error, please immediately notify the sender by telephone at (206) 838-2528. Thank you.




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