Selling an Illinois Home:
What Are My Disclosure Obligations?
What home sellers in Illinois should know about their state’s law on disclosures to buyers about the home’s condition.
The Illinois legislature sought to cure this confusion by adding seller disclosure obligations to the Illinois statutes. (765 ILCS § 77.) Let’s take a closer look at what the present-day statutory disclosure requirements mean for Illinois home sellers.
Types of Disclosures Illinois Home Sellers Must Make
Illinois law requires you, as a home seller, to tell a prospective buyer, in writing, about any material defects you actually know about. This means anything you’re aware of that affects the value, healthfulness, and safety of your property.
This could include things like past flooding and flood risk, unsafe conditions, municipal code violations, environmental issues, boundary line disputes, and defects in specified structures, components, and systems.
You must make these disclosures BEFORE signing a sales contract.
The disclosure is not meant to serve as a warranty or substitute for inspections, but to put the buyer on an equal footing with you during contract negotiations.
Not All Illinois Property Sellers Must Follow the Disclosure Law
The Illinois Residential Real Property Disclosure Act applies to “sellers” of “residential real property.” Both terms are defined in the law: “Residential real property” is property improved with one to four residential dwelling units, or an individual condominium or cooperative unit. A “seller” is any owner, or any beneficiary of a trust that owns the property.
You need not complete a disclosure form if you never occupied the property and never had management responsibility for it, nor if you hired someone else to manage it. (See 765 ILCS § 77/5.) The law applies to conventional sales, installment sales, and sales of property owned by an Illinois Land Trust. (See 765 ILCS § 77/10 and 15.)
The buyer and seller cannot agree to ignore the disclosure requirement, not even if the buyer signs a contract agreeing to purchase the property “as is” (in its current condition), nor if the buyer already knows about the defects. You, the seller, must make disclosures regardless, and even if the property is a tear-down; unless it is uninhabitable as a residence at the time of the sale. (See the case of Grady v. Sikorski, 349 Ill. App. 3d 774 (Ill. App., 2004).)
Completing and Delivering the Disclosure Form
The law does not require you to disclose absolutely everything you know about the property. You are required to answer the questions on the standard “Residential Real Property Disclosure Report” form, the language of which comes directly from the law. (See 765 ILCS § 77/35.) Your real estate broker or attorney will be able to provide you with a printed version of the form and help you complete it.
All of the required disclosures are listed on the form as “Yes,” “No,” or “Not Applicable” questions. Extra space is provided for you to give more information regarding matters for which you check “Yes” or “Not Applicable.” It’s a good idea to attach a copy of the law itself to the form before delivering it to the buyer.
Many of the questions ask about “material defects” in the various named structures, components, and systems. Defects that are not material need not be disclosed. Exactly where the line should be drawn can be difficult, however, to determine. When in doubt, it’s often better to disclose an issue than not. You’ll increase buyer confidence and avert anger and possibly lawsuits later.
Your real estate broker might ask you to complete the form when you sign the listing agreement. However, Illinois attorneys recommend getting a legal consultation before delivering the form to a buyer. The lawyer might discover that the law does not apply to you or to the particular type of property or transfer, or can help you decide whether a defect is material.
You must sign and date the form. By signing, you certify that your disclosures are complete and accurate. If you co-own the property with others, all owners should sign the form.
Your signature also authorizes your listing broker or attorney to deliver the form to the buyer. If you deliver the form yourself, you should send it to an address or fax number provided by the buyer or indicated on the contract, by messenger, fax, first class U.S. mail, or an alternative delivery service such as FedEx or UPS, with postage or delivery charges prepaid. (See 765 ILCS § 77/50.)
Sellers Need Not Have the Property Inspected Before Completing the Disclosure Form
You have no duty to obtain an inspection to help you complete the disclosure form. That’s because you need disclose only those defects within your actual knowledge. If a defect is listed on an existing inspection report, you should disclose it if it has not been fixed.
Many sellers do, however, choose to conduct an inspection before putting their property on the market. That allows them to price the property accurately, fix some defects rather than having to disclose them, and know what they’re in for when the buyers do their inspections. Again, you’ll need to disclose any material defects discovered in the course of such inspections that you do not fix before offering the property for sale.
If You Discover a Property Defect or Error After Delivering the Disclosure Form
If you become aware of a defect in the property after delivery of the disclosure, you must send a supplemental disclosure to the buyer. (765 ILCS § 77/30.)
If you later find out that the disclosure law did not apply to you or to your transaction, or that a defect you disclosed in the form was not required to be disclosed, either you or your attorney can write to the buyer or the buyer’s attorney, and tell them that the form was incorrect. You should also state in the letter that the form is void.
This helps guard against the possibility of later lawsuits. It provides a reminder to the buyer that you didn’t really need to make any disclosures at all, so suing you over incomplete or erroneous disclosures is likely to go nowhere.
If You Don’t Make the Required Disclosures: Risks and Penalties
If you fail to deliver the disclosure, the buyer may terminate the contract at any time before closing. If you knowingly deliver a disclosure that is incorrect or incomplete, you might be liable to the buyer for actual damages, court costs, and attorney’s fees. (See 765 ILCS § 77/55.) You may be held liable for false statements in a disclosure even if the buyer knew about the defects, although the buyer’s knowledge may serve to reduce a damage award.(See Coughlin v. Gustafson, 772 N.E.2d 864 (Ill. App., 2002).)
If the buyer sues you for negligent, rather than intentional, misrepresentation on a disclosure form, your homeowners’ insurance carrier may have a duty to pay for an attorney to defend you.
Illinois Radon Disclosure Requirement
The Illinois Radon Awareness Act, 420 ILCS § 46/1 et seq., requires you to give two pamphlets about radon hazards to the buyer before the contract is signed. The first pamphlet is from the Illinois Emergency Management Agency and is entitled Radon Testing Guidelines for Real Estate Transactions.
The second pamphlet is the Illinois Disclosure of Information on Radon Hazards and is copied exactly from the law at 420 ILCS § 46/10, stating that the property might present the potential for exposure to radon. The disclosure law does not require the seller to conduct radon testing or mitigation; however, many Illinois form real estate contracts include these requirements.
Federal Law Requiring Lead Disclosure
Federal law requires disclosure of potential lead paint and other lead hazards.
For further information on Illinois and federal real property sale disclosure requirements, consult an experienced real estate attorney