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socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 37801
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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I have a question about a Real Estate Condition Report and

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I have a question about a Real Estate Condition Report and what's required as a seller (me). We have had 2 "water" instances on our home. One in 2008, where there was record flooding in WI. After we dealt with 1/8" of water coming from under our slab foundation, we installed drain tiles along the west and east sides of our home, installed a new driveway with proper pitch to a drain (into a lake we live on), and cut a swale on our property line/neighbors, to divert water that was coming over from the neighbor's yard. Since 2008, no further issues.
In 2013, we discovered water in our lower level again. The source immediately identified as a large crack between the asphalt and concrete portions of our driveway. Because of the crack, water was ablt to travel under our concrete pad, and under our slab, until it rose up at the low point of our slab, into the house. We immediately had the crack repaired, and took another measure to install a sump pump, as addition "insurance". Had we had a sump pump this time, the water would have been diverted out of the house before it rose to the top of the slab.
The question much of this are we required to disclose in the RECR, as the issues/defects have been dealt with and resolved. We have had several hard rains since the March incident, with no problems and a sump pump that has kicked on maybe 5 times (for 10 secs), since we installed it.

Under WI Stat. 709.02, "a seller of real estate is required to disclose to potential buyers all known defects within ten days after acceptance of an offer to purchase the property....according to the plain language of WIS. STAT. § 709.03, a seller is not required to disclose all possible hazards associated with a characteristic of a property." Hoekstra v. Guardian Pipeline, LLC, 726 N.W.2d 648, 2006 WI App 245 (2006).

In plain english, if you know about a past defect, then you must disclose, regardless of how long ago the defect was known. However, you do not have to disclose any possible future defect.

You have apparently remedied the past defect, so you no longer need to disclose its existence. However, were the problem to suddenly become a present defect again, the buyer will undoubtedly claim that you failed to disclose a past defect. So, you have to choose between disclosing that which you are no required to disclose, as a means of avoiding the possibility of legal action, even though you may ultimately prevail -- or, not disclosing and accepting the risk of legal action, which may be resolved in your favor, but which could create substantial litigation costs in the process.

Please let me know if I can be of further assistance.
Customer: replied 3 years ago.
Thank you. I have disclosed on the RECR, and it's on record with the MLS agent, and appears on the listing information. I think because it's there, possible buyers are scared off. If I could explain it to them , I think their fears would be dimished. Should I just leave it off the RECR for now, and wait til I get an offer (per the statutes)and disclosed then....can I do that?...
Yes, you can do exactly what you suggest. The statute gives you 10 days to disclose.

Hope this helps.
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