Under Illinois law, there are certain disclosures that must be provided to potential buyers when selling a home. These disclosures reveal to prospective buyers the information that owners know about the physical condition of the property. Failure to deliver the required disclosures or submitting false or incomplete disclosures can result in the termination of a purchase contract. Sellers can sometimes be held liable for damages, attorney’s fees and court costs as well.
Who Does the Illinois Disclosure Law Apply To?
Under the Illinois Residential Real Property Disclosure Act, sellers of residential real property must provide accurate and complete property condition disclosures to buyers in most circumstances. Residential real property is defined as property that has been improved with between one and four residential dwellings, individual condominiums or cooperative units. Sellers are those who either own the property or who are beneficiaries of a trust that owns the property.
Even when a prospective buyer knows about the defects of the property or agrees to purchase it “as is”, Illinois law requires that the disclosures must be made unless the property is uninhabitable.
If a “seller” has never lived in the property and has never managed it or hired someone else to manage it, a property disclosure is not required, however. And if the property is being transferred as part of a foreclosure, bankruptcy or divorce, it is being distributed from an estate, or it is being transferred to a close family member, disclosure forms are generally not required.
What Disclosures Must Illinois Sellers Make
The disclosures that are required under Illinois law are not all-inclusive of every known condition about the property in question. Specific questions are provided on the “Residential Real Property Disclosure Report” that is provided by Illinois real estate professionals or Lake County lawyers. This form uses language that comes directly from Illinois law, and it is created in a yes, no or not applicable format. Additional lines are provided for further explanation when needed, but many Lake County lawyers recommend that sellers attach a copy of the law that pertains to a “not applicable” answer before they provide disclosures to buyers.
The required disclosures include information about any environmental issues associated with the home, past flooding and possible flood risk, unsafe or unhealthy conditions, property line disputes, code violations, and material defects in certain structures, systems and components. Previous defects are not required to be reported as long as the seller truly believes the issues have been remedied. In Illinois, radon disclosure is required, and federal law requires the disclosure of lead hazards as well. The exact level of disclosure and determining what requires disclosure can be confusing, but as a general rule, Lake County lawyers recommend disclosing any issues that sellers have doubt about to help avoid angry buyers and possible lawsuits in the future.
While the law requires that property disclosures be completed before a sales contract is signed, many real estate professionals will request that the form be done at the time the listing agreement is signed. All owners/ co-owners should sign and date the disclosure before it is submitted.
A Residential Real Property Disclosure is Not a Warranty
The Illinois Residential Real Property Disclosure is not designed to act as a warranty against property issues. Instead, it is supposed to help put buyers and sellers on an equal playing field during contract negotiations. Sellers are not legally obligated to obtain professional property inspections because they are only required to report issues within their actual knowledge. If a recent property inspection reveals a problem, however, sellers are required to report any defect from a report that has not been remedied.
When Defects or Errors are Discovered After the Disclosure is Submitted
In some situations, sellers may discover property condition issues after the disclosure form has been completed. If this occurs, the seller must complete and send a supplemental disclosure to prospective buyers. If an erroneous entry was made on the original disclosure, the buyer must also be notified.
Even after a supplemental disclosure is submitted to a buyer, the buyer does not have the legal right to terminate the agreement as long as the seller was not aware of the problem in question when the original disclosure was completed. Common provisions in Illinois real estate contracts, however, enable buyers to order an inspection of the property prior to closing to ensure that its condition has not changed. If omitted defects are revealed in an inspection, buyers have the right to demand repairs be made.
Broker Liability For Non-Disclosure in Illinois
While sellers can be held liable for non-disclosure in Illinois, real estate brokers are required to disclose known facts to home buyers as well. When brokers conceal known property issues, they are in violation of the Real Estate Broker and Salesman License Act, and can be held liable.
