What disclosures do sellers need to make when selling?

A: Sellers, through various forms and reports, disclose any conditions known to them which might negatively affect the value and desirability of the property for a prospective buyer.

Mandated property disclosures include:

  • The Transfer Disclosure Statement (TDS): As the seller of a one-to-four unit residential property, you are required to furnish prospective buyers with a TDS setting forth the physical conditions and any other value-affecting facts regarding the property, its improvements and its surrounding area. The TDS is handed to prospective buyers as soon as practicable (ASAP) — when negotiations to purchase your property commence.
  • The Natural Hazard Disclosure (NHD) Statement:The NHD statement is a mandated form prepared by a third-party NHD expert used by you and your agent to disclose public-ably available natural hazard information such as potential flooding, fire hazards and earthquake fault zones.
  • The Lead-Based Paint (LBP) disclosure: The federal LBP disclosure form is required for all pre-1978 residential construction. LBP disclosure rules set forth the requirements for you to disclose any known LBP hazards and the buyer’s right to investigate them.

You may obtain additional reports to best disclose your property’s conditions to a prospective buyer. These reports, which your seller’s agent will advise you about, provide additional information to include in the TDS:

  • The Home Inspection Report (HIR): A home inspectorconducts a physical examination of your property to determine the condition of its components and systems. On completion of their examination, they hand you an HIR on their observations and findings. In turn, you use the HIR to prepare your TDS, and then attach it to the TDS to avoid claims of misrepresentation against you and your agent.
  • A Structural Pest Control (SPC) report: A report disclosing the existence of termites or structural damage due to a termite or fungal infestation.
  • Whether you or the buyer will pay for corrective actions and repairs outlined in the SPC report is negotiated between you and the buyer in the purchase agreement.
  • A neighborhood security disclosure: A form disclosing the known security conditions or criminal activity affecting the property and its surrounding area.

Further, your duty to disclose your knowledge about adverse conditions cannot be waived by your placing an “as-is” disclaimer in the purchase agreement.

Property cannot be sold “as is” without disclosure. Note: you and your agent are both liable for monetary losses in pricing or costs incurred by the buyer due to the failure to disclose defects you or your agent knew or should have known existed when you entered into the purchase agreement.

What are digital signatures?

Digital signatures are like electronic “fingerprints.” In the form of a coded message, the digital signature securely associates a signer with a document in a recorded transaction. Digital signatures use a standard, accepted format, called Public Key Infrastructure (PKI), to provide the highest levels of security and universal acceptance. They are a specific signature technology implementation of electronic signature (eSignature).

What’s the difference between a digital signature and an electronic signature?

The broad category of electronic signatures (eSignatures) encompasses many types of electronic signatures. The category includes digital signatures, which are a specific technology implementation of electronic signatures. Both digital signatures and other eSignature solutions allow you to sign documents and authenticate the signer. However, there are differences in purpose, technical implementation, geographical use, and legal and cultural acceptance of digital signatures versus other types of eSignatures.

In particular, the use of digital signature technology for eSignatures varies significantly between countries that follow open, technology-neutral eSignature laws, including the United States, United Kingdom, Canada, and Australia, and those that follow tiered eSignature models that prefer locally defined standards that are based on digital signature technology, including many countries in the European Union, South America, and Asia. In addition, some industries also support specific standards that are based on digital signature technology.

How do digital signatures work?

Digital signatures, like handwritten signatures, are unique to each signer. Digital signature solution providers, such as DocuSign, follow a specific protocol, called PKI. PKI requires the provider to use a mathematical algorithm to generate two long numbers, called keys. One key is public, and one key is private.

When a signer electronically signs a document, the signature is created using the signer’s private key, which is always securely kept by the signer. The mathematical algorithm acts like a cipher, creating data matching the signed document, called a hash, and encrypting that data. The resulting encrypted data is the digital signature. The signature is also marked with the time that the document was signed. If the document changes after signing, the digital signature is invalidated.

As an example, Jane signs an agreement to sell a timeshare using her private key. The buyer receives the document. The buyer who receives the document also receives a copy of Jane’s public key. If the public key can’t decrypt the signature (via the cipher from which the keys were created), it means the signature isn’t Jane’s, or has been changed since it was signed. The signature is then considered invalid.

To protect the integrity of the signature, PKI requires that the keys be created, conducted, and saved in a secure manner, and often requires the services of a reliable Certificate Authority (CA). Digital signature providers, like DocuSign, meet PKI requirements for safe digital signing.

Household appliance life expectancy

As much as we don’t like to think about it, household appliances need to be upgraded at some point. Most warranties offer an easy solution to this problem, but it isn’t always so simple. Regular maintenance while planning for replacements can help extend the life of your appliances and prevent financial and emotional shock when they break down.

Air conditioner: Good-quality central air conditioners can last up to 20 years, with many replacement parts readily available.

  • Filter cleaning or replacement improves efficiency and protects the health of the evaporator coil. The coil should be cleaned once a year.
  • Problems may also arise from incorrect installation resulting in leaky ducts and low airflow. Consult an HVAC professional to ensure your AC is functioning properly.

Dishwasher: Dishwashers usually last no more than 10 years.

  • Pay attention to lime buildup — use a lime descaler once a year to extend the life of your appliance.
  • Clean your dishwasher’s filter every six months to greatly improve its cleaning ability.

Refrigerator: Refrigerators need to be replaced about every 15 years.

  • Clean dusty condenser coils twice a year to improve performance and extend the life of your refrigerator.
  • Clean door gaskets to ensure a tight seal and prevent stress to the refrigerator’s motor — gasket repairs can be costly.

Washer/Dryer: At an average of one load per day, all newer model washing machines and dryers can last up to 14 years.

  • Avoid overloading your washer to reduce the strain placed on its moving parts and extend its life.
  • Clean the lint screen on your dryer after every load to improve circulation and eliminate fire hazards — use the long nozzle on vacuum to clean lint missed by the screen.
  • Clean the dryer vent ducting once a year so it flows cleanly.

Water heater: Depending on the type of water heater in your home (standard storage, tankless, heat pump or solar) it can last anywhere from 10 to 20 years.

  • Water heaters are subject to rust and mineral buildup. Flushing sediment from the tank and checking the anode rods once a year will help improve efficiency and longevity. Replacing the anode rods when needed can save you hundreds of dollars.
  • Experts recommend repairing rather than replacing your water heater up until 10 years of use. When problems become more complicated after that, it’s time to consider upgrading.

What is the purpose of the TDS?

A: A seller’s broker and their agents have a fiduciary agency duty owed to their seller to diligently market the listed property for sale and do what is necessary to locate a buyer.

On locating a prospective buyer, the seller’s agent owes the prospective buyer and the buyer’s agent a general duty to provide factual information on the listed property, collectively called disclosures of material facts.

The seller’s agent is required to gather facts about a property that affect the property’s value, and actively take steps to make specific disclosures to prospective buyers when marketing a one-to-four unit residential property for sale.

Fact gathering activity of the seller’s agent includes:

  • Conducting a visual inspection of the property to observe conditions which might adversely affect the market value of the property;
  • Entering any observations of adverse conditions inconsistent with or already noted by the seller on the the Transfer Disclosure Statement (TDS);
  • Assuring seller compliance with the seller’s duty to deliver statements to prospective buyers as soon as practicable (ASAP), including a TDS, by providing the seller with statutory forms at the listing stage to be filled out, signed by the seller and returned to the agent for inclusion in the marketing package to be handed to prospective buyers on their inquiry into additional property information; and
  • Reviewing and confirming, without further investigation or verification by the seller’s agent, that all the information and data in the disclosure
  • Documents received from the seller are consistent with information and data known to the seller’s agent, and if not, correct the information and data by either investigating and clarifying the information or disclosing in the documents their uncertainty about the information.

A seller’s agent’s duty owed to prospective buyers to disclose facts about the integrity of the physical condition of a listed one-to-four unit residential property is limited to prior knowledge about the property and the observations made while competently conducting the mandatory visual
inspection.

Accordingly, all property information received from the seller is reviewed by the seller’s agent for any inaccuracies or untruthful statements known or suspected to exist. Corrections or contrary statements by the seller’s agent
necessary to set the information straight are included in the document or the document corrected before the information may be used to market the property and induce prospective buyers to make an offer to acquire the property.

How do I Negotiate a Counter offer?


The preparation of a counteroffer allows you as the seller and your agent to take control of negotiations after a prospective buyer submits a purchase offer. Your agent, on receiving a prospective buyer’s offer, will review with you:

  • The terms offered and contingency provisions — conditions — which affect closing;
  • The likely net sales proceeds the offer will generate; and
  • Their knowledge about the profit tax liability you will likely incur on the sale when the property is not your primary residence.

A counteroffer is made when the terms and conditions of the buyer’s offer are for any reason unacceptable without a change. Your agent prepares your written counteroffer and reviews it with you before you sign it and your agent submits it to the buyer. Your signed counteroffer documents your intent to be bound by your offer to sell when the buyer accepts.

To counter a buyer’s unacceptable purchase offer, your agent may recommend that they:

  • Prepare your counteroffer on a new purchase agreement form;
  • Prepare your counteroffer on a counteroffer form;
  • Dictate escrow instructions based on terms and conditions orally negotiated with the buyer (or buyer’s agent);
  • Set up an auction environment by calling for the submission of all “best and final” offers in a multiple-offer situation; or
  • Orally advise the buyer’s agent about the changes they need to make before you will accept the buyer’s offer.

The buyer may agree to purchase your property on the terms stated in your counteroffer by merely signing the counteroffer and delivering it as accepted, or submit a counteroffer back to you for
further negotiations.

Senior, 55+ yo, Carry Forward

A: If you’re a California homeowner aged 55 or older, you have a once-in-a-lifetime right to sell your home and carry forward its current assessed
value to a replacement residence of equal or lesser value.

To qualify to carry forward the current assessed value:

  • You need to own and occupy the home sold as well as the replacement home;
  • Both homes must be eligible for the homeowner’s $7,000 property tax exemption;
  • You or your spouse must be at least 55 years old or severely and permanently disabled on the closing date of the sale of your old home;
  • You need to purchase (or construct) a replacement home of equal or lesser value than the home you sold
  • The replacement residence must be located:
    • In the same county as the property sold; or
    • Within another participating county; and
    • The purchase (or construction) of the replacement home needs to close (or construction completed) within two years before or after closing the sale of your old home.

When your replacement home is not within the same county as the home you sold, the county of your replacement property needs to be a participating county which allows the carry-forward assessment from your prior county.

Currently participating counties include Alameda, El Dorado, Los Angeles,
Orange, Riverside, San Bernardino, San Diego, San Mateo, Santa Clara, Tuolumne and Ventura counties (subject to change).

Only one carry-forward assessment exemption is allowed per married couple. For example, if a married couple takes a carry-forward assessment exemption, and one spouse later dies, the surviving spouse may not take a carry-forward assessment exemption even if they later remarry.

When you and a co-owner both reside in the home and are not married, you both individually qualify for the carry-forward assessment. However, on the sale, only one of you may use the exemption.

Thus, the co-owner who does not apply for the exemption is precluded from any future use of the assessment carry-forward tax relief.

The only exception is when you become severely and permanently disabled after receiving the carryforward tax relief due to your age. In this case, you
may use the exemption a second time under a separate claim due to the disability.

A Buyers’ and Sellers’ Guide to Multiple Offer Negotiations

Information for Buyers

  • In some situations sellers will have several competing purchase offers to consider. Sellers have several ways to deal with multiple offers. Sellers can accept the “best” offer; they can inform all potential purchasers that other offers are “on the table”; they can “counter” one offer while putting the other offers to the side awaiting a decision on the counter-offer; or they can “counter” one offer and reject the others.
  • While the listing broker can offer suggestions and advice, decisions about how offers will be presented – and dealt with – are made by the seller – not by the listing broker.
  • There are advantages and disadvantages to the various negotiating strategies you can employ in multiple offer negotiations. A low initial offer may result in buying the property you desire for less than the listed price – or it may result in another buyer’s higher offer being accepted. On the other hand, a full price offer may result in paying more than the seller might have required. In some cases there can be several full price offers competing for the seller’s attention – and acceptance.
  • Your buyer-representative (agent) will explain and advise on the pros and cons of these (and possibly other) negotiating strategies. The final decision, however, is yours to make.
  • Purchase offers generally aren’t confidential. In some cases sellers may make other buyers aware that your offer is in hand, or even disclose details about your offer to another buyer in hope of convincing that buyer to make a “better” offer. In some cases sellers will instruct their listing broker to disclose an offer to other buyers on their behalf.
  • Listing brokers (the sellers representative) are required to follow lawful, ethical instructions from their clients in the same way that buyer-representatives must follow lawful, ethical instructions from their buyer-clients. While some REALTORS® may be reluctant to disclose terms of offers, even at the direction of their seller-clients, the Code of Ethics does not prohibit such disclosure. In some cases state law or real estate regulations may limit the ability of brokers to disclose the existence or terms of offers to third parties.
  • You may want to discuss with your buyer-representative the possibility of making your offer confidential, or of establishing a confidentiality agreement between yourself and the seller prior to commencing negotiations.
  • Realize that as a represented buyer, your broker likely has other buyer-clients, some of whom may be interested in the same properties as you are. Ask your broker how offers and counter-offers will be presented and negotiated if more than one of his buyer-clients are trying to buy the same property.
  • Appreciate that your buyer-representative’s advice is based on past experience and is no guarantee as to how any particular seller will act (or react) in a specific situation.

Information for Sellers

  • It’s possible you may be faced with multiple competing offers to purchase your property. Your listing broker can explain various negotiating strategies for you to consider. For example, you can accept the “best” offer; you can inform all potential purchasers that other offers are “on the table” and invite them to make their “best” offer; you can “counter” one offer while putting the other offers to the side awaiting a decision on your counter-offer; or you can “counter” one offer and reject the others.
  • If you have questions about the possibility of multiple offers and the way they can be dealt with, ask your listing broker to explain your options and alternatives.
  • Realize that each of these approaches has advantages and disadvantages. Patience may result in an even better offer being received; inviting buyers to make their “best” offers may produce an offer (or offers) better than those “on the table” – or may discourage buyers who feel they’ve already made a fair offer resulting in them breaking off negotiations to pursue other properties. Your listing broker will explain the pros and cons of these strategies (and possibly other) negotiating strategies. The decisions, however, are yours to make.
  • Appreciate that your listing broker’s advice is based on past experience and is no guarantee about how any particular buyer will act (or react) in a specific situation.

Information for Buyers and Sellers

Perhaps no situation facing buyers or sellers is more potentially frustrating or fraught with potential for misunderstanding and for missed opportunity than presenting and negotiating multiple, competing offers to purchase the same property. Consider the following issues and dynamics:

  • Sellers want to get the highest price and best terms for their property.
  • Buyers want to buy at the lowest price and on the most favorable terms.
  • Listing brokers – acting on behalf of sellers – represent sellers’ interests.
  • Buyer representatives represent the interests of their buyer-clients.
  • Will a seller disclosing information about one buyer’s offer make a second buyer more likely to make a full price offer? Or will that second buyer pursue a different property?
  • Will telling several buyers that each is being given a chance to make their “best offer” result in spirited competition for the seller’s property? Or will it result in the buyers looking elsewhere?
  • What’s fair? What’s honest? Why isn’t there a single, simple way to deal with multiple competing offers?

Knowledgeable buyers and sellers realize there are rarely simple answers to complex situations. But some fundamental principles can make negotiating multiple offers a little simpler.

  • Realize the listing broker represents the seller – and the seller’s interests, and the buyer-representative represents the buyer – and the buyer’s interests. Real estate professionals are subject to state real estate regulation and, if they are REALTORS®, to the Code of Ethics of the National Association of REALTORS®.
  • The Code of Ethics obligates REALTORS® to be honest with all parties; to present offers and counter-offers quickly and objectively; and to cooperate with other brokers. Cooperation involves sharing of relevant information.
  • Frequently frustration and misunderstanding results from cooperating brokers being unaware of the status of offers they have presented on behalf of their buyer-clients. Listing brokers should make reasonable efforts to keep buyer-representatives up-to-date on the status of offers. Similarly, buyer-representatives should keep listing brokers informed about the status of counter-offers their seller-clients have made.

Finally, buyers and sellers need to appreciate that in multiple offer situations only one offer will result in a sale, and the other buyers will often be disappointed their offers were not accepted. While little can be done to assuage that disappointment, fair and honest treatment throughout the offer and negotiation process, coupled with prompt, ongoing and open communication, can enhance the chances that all buyers – successful or not – will feel they were treated fairly and honestly.

What environmental hazards is a seller to disclose?

A: Environmental hazards are man-made hazards such as noxious or annoying conditions, not natural hazards that exist at the location of the property.

As environmental hazards, the conditions are classified as either:
• Injurious to the health of humans; or
• An interference with an individual’s sensitivities.

Environmental hazards are defects in a property affecting its use by humans. If known to a prospective buyer, the defects may affect a prospective buyer’s decision to purchase the property. Thus, the environmental conditions are material facts. When known to the seller or the agents participating in a transaction, environmental hazards are to be disclosed to prospective buyers since material facts adversely affect
the property’s value.

Environmental hazards located on the property which pose a direct health threat to occupants include:
• Asbestos-containing building materials;
• Carbon monoxide;
• Formaldehyde;
• Hazardous waste;
• Lead;
• Toxic mold; and
• Radon gas concentrations.

The seller’s agent conducts a visual inspection of the property for visible environmental hazards, as well as physical defects, before reviewing the seller-prepared Transfer Disclosure Statement (TDS) for correctness.

On review of the TDS, the agent enters on it any of their observations inconsistent with the seller’s entries to correct the TDS for seller errors or oversights. The TDS becomes one document in the marketing package used to induce buyers to acquire the property.

The timing for delivery of the TDS to prospective buyer as a disclosure is as soon as practicable (ASAP) after the buyer or their agent makes an inquiry seeking further information on the listed property, usually by delivery of a marketing package which includes the TDS.

Also, the seller’s agent delivers, or confirms the buyer’s agent has handed the prospective buyer a copy of the environmental hazard booklet approved by the California Department of Health and Safety (DHS).

The seller is not obligated to hire a third party to investigate and report on whether an environmental hazard is present on or about the property. It is the seller’s and the seller’s agent’s knowledge about hazardous environmental conditions affecting the property which is disclosed on the
TDS.

Will I pay taxes if I sell my home?

A: When you sell your primary residence, it is excluded from taxation up to $250,000 profit per individual owner when you qualify for the principal
residence profit exclusion. When you own your home with another person, together you may exclude up to $500,000.

To qualify for the exclusion, you need to have occupied the property as your principal residence for at least two of the last five years. When you own your home with another person, you both must be owners and meet the two-out-of-five year occupancy rule. If only one of you meets the occupancy rule, then the profit exclusion is limited to $250,000.

However, when you and your spouse have not simultaneously owned and occupied the residence for at least two of the last five years, you still qualify for the $500,000 exclusion if:

  • One of you owned the residence;
  • You both meet the two-out-of-five year occupancy rule;
  • You file a joint tax return for the year of the sale; and
  • Neither of you has taken a principal residence profit exclusion on another property within two years prior to the sale.

You do not need to occupy the home at the time of sale to qualify for the principal residence profit exclusion under the two-out-of-five year rule.
If you do not meet the two-out-of-five year occupancy rule, you do not qualify for the tax exclusion — with one exception. If you relocated due to personal difficulties, you may still qualify for a partial tax exclusion. Personal difficulties include:

  • A change in employment when your new job is located at least 50 miles farther from your home than your old place of employment or, if you were
  • Unemployed, the job is at least 50 miles away from your home;
  • A change in health, such as age-related infirmities, emotional issues or even severe allergies; and
  • Unforeseen circumstances, such as death, divorce or natural disasters.

With the personal difficulties exception, when you relocate after occupying the property for less than 24 months, you qualify for a profit exclusion
amount equal to the fraction of the ceiling amount ($250,000/$500,000) attributable to the portion of the 24 months you occupied the property.