If you’re selling a home, seller disclosure requirements come from two layers of law. Federal law has one rule: homes built before 1978 trigger a lead-based paint disclosure. Everything else — structural defects, environmental hazards, legal encumbrances — is set by your state, and in nearly every state you must tell the buyer in writing about any material problem you actually know about before they sign the purchase contract.
The One Federal Rule: Lead Paint in Pre-1978 Homes
The Residential Lead-Based Paint Hazard Reduction Act of 1992 is the only disclosure mandate that applies the same way in every state. If your home was built before 1978, three things have to happen before the buyer is bound by a purchase contract: you give them the EPA pamphlet “Protect Your Family from Lead in Your Home,” you disclose any lead-based paint or lead-paint hazards you know about along with any inspection reports you have, and you give the buyer 10 days to arrange their own lead inspection.1Office of the Law Revision Counsel. 42 USC 4852d – Disclosure of Information Concerning Lead Upon Transfer of Residential Property You and the buyer can agree in writing to shorten or extend the 10-day window, and the buyer can waive the inspection.2Environmental Protection Agency. Real Estate Disclosures About Potential Lead Hazards
The contract itself must include a Lead Warning Statement and the buyer’s signed acknowledgment that they received the pamphlet, read the warning, and had a chance to inspect.1Office of the Law Revision Counsel. 42 USC 4852d – Disclosure of Information Concerning Lead Upon Transfer of Residential Property Housing for the elderly, housing for people with disabilities, and studio apartments where no child under six lives or is expected to live are exempt.3Office of the Law Revision Counsel. 42 USC Chapter 63A – Residential Lead-Based Paint Hazard Reduction
Skipping these steps gets expensive. The base regulatory penalty is $11,000 per violation under the Toxic Substances Control Act, and EPA inflation adjustments have raised the actual number.4eCFR. 40 CFR 745.118 – Enforcement A buyer who was deprived of the disclosure can also sue for triple their actual damages plus attorney fees and expert witness costs.1Office of the Law Revision Counsel. 42 USC 4852d – Disclosure of Information Concerning Lead Upon Transfer of Residential Property
Material Defects You Have to Disclose
Most states require sellers to disclose material defects — problems significant enough to affect the property’s value or a buyer’s willingness to purchase. A handful of states still lean on caveat emptor, but even there, actively concealing a known defect creates legal liability. The specific form varies by state, but the categories are consistent.
Roof condition is almost always on the form: age, any history of leaks, repairs, and replacements. Plumbing, electrical, and heating and cooling systems get the same treatment because they go to whether the home is habitable. Foundation cracks, settling, or shifting have to be documented. So do basement water intrusion and chronic drainage issues. These categories drive most post-sale lawsuits because they involve repairs expensive enough that a buyer wouldn’t have paid the agreed price if they’d known.
Pest damage, especially from termites and other wood-destroying insects, is usually a separate question. You’ll be asked whether you know of any current or past infestations and whether the property has been treated. Termite damage hidden behind walls is a classic latent defect, and a general home inspection doesn’t always catch it. The seller’s knowledge is what matters.
Environmental Hazards and Legal Issues
Environmental problems you can’t see on a walkthrough are a core category of required disclosure. Asbestos insulation, common in homes built before the 1980s, generally has to be disclosed if you know it’s there. Mold infestations affecting air quality or structural materials fall in the same bucket. Soil contamination from leaking underground storage tanks is another standard item.5Environmental Protection Agency. Leaking Underground Storage Tank Cleanup Cost Study
Radon sits in a gray area. There’s no federal radon disclosure requirement, and only about ten states have enacted laws specifically requiring sellers to share radon test results or notify buyers of radon risks. But if you’ve had the home tested and the results showed elevated levels, that’s a known material defect, and many states require you to disclose it under their general materiality standard even without a radon-specific statute.
Legal encumbrances get their own section on most forms. Easements letting utility companies or neighbors cross your land, boundary encroachments where a structure crosses the property line, and any pending lawsuits involving the property all have to be shared. If the home is in a homeowners association, you typically have to disclose that the HOA exists, the amount of dues, and any restrictive covenants limiting what the buyer can do with the property.
Off-Site Conditions
Whether you have to disclose problems beyond your property line is less settled. Some states apply the same materiality test off-site that they apply on-site: if you know about it, the buyer can’t easily find it, and it affects value, it goes on the form. Other states list specific off-site items like proximity to airports, landfills, or persistent noise sources. Courts have generally held that off-site conditions in the public record, like planned highway construction or zoning changes, don’t require separate seller disclosure because the buyer can find them independently.
Former Drug Laboratories
There’s no federal rule requiring you to disclose a property’s use as a clandestine drug lab, but many states do. Chemical contamination from methamphetamine production can permeate surfaces and create serious health risks for new occupants, and the disclosure obligation is handled entirely at the state level.
What You Don’t Have to Disclose
Disclosure laws have limits. Most states exempt sellers from reporting stigmatized property events. A death from natural causes on the property is not something any state requires you to volunteer. Rules on violent deaths, suicides, and alleged hauntings vary, but the trend across most states is to shield sellers from having to disclose these events. No state requires you to report that your house is rumored to be haunted.
You also generally don’t need to point out obvious flaws. A cracked driveway, peeling exterior paint, or worn carpet is something the buyer sees during a showing. These patent defects rarely meet the threshold of a material defect worth reporting. The line between cosmetic and material can be fuzzy, though. A ceiling stain you know came from an active leak isn’t cosmetic. It’s evidence of a structural problem, and it has to be disclosed.
“As-Is” Sales Still Require Disclosure
This is where sellers get caught more than anywhere else. Listing a property as-is tells the buyer you won’t make repairs. It does not eliminate your duty to disclose defects you know about. Courts across multiple states have been consistent: an as-is clause shifts the risk of unknown problems to the buyer, but it doesn’t let you hide known ones. If you know the foundation is cracked and you sell as-is without saying so, a court will treat it as concealment.
Latent defects — problems hidden behind walls, underground, or otherwise invisible during a normal inspection — are precisely what disclosure laws target. An as-is buyer accepts the risk that the 20-year-old water heater might fail next month. They don’t accept the risk that you knew about ongoing sewage backups and stayed quiet.
Transactions That Are Exempt
Some sales are carved out of state disclosure requirements entirely. The specific exemptions vary, but the common ones include:
- Foreclosure sales, including deed-in-lieu transfers, where the lender has no firsthand knowledge of the property.
- Estate and probate transfers, where the executor may never have lived in the home.
- Court-ordered transfers from bankruptcy, divorce, or eminent domain.
- Transfers between spouses, co-owners, or close family members.
- The first sale of a newly built home that has never been occupied, though the builder may have separate warranty obligations.
Even in an exempt transaction, the federal lead paint rule still applies to any pre-1978 home. And a seller who actively lies in response to a direct question from the buyer can face fraud claims whether or not a formal disclosure form was required.
Filling Out and Delivering the Form
Each state that requires disclosures publishes its own form, usually through the state real estate commission. The form is a questionnaire covering structural systems, water and sewer, environmental hazards, legal issues, and so on. You answer each question based on your actual knowledge.
Actual knowledge is the standard. You aren’t expected to hire an inspector or go looking for problems you’ve never encountered. If you genuinely don’t know whether there’s been termite damage, most forms let you check “unknown,” and that’s fine. What you can’t do is mark “unknown” for something you actually know about. Claiming ignorance of a problem you’re aware of is the fastest route to a fraud claim after closing.
In most states, the completed disclosure has to reach the buyer before they sign a binding purchase contract. Some sellers hand it out earlier, at open houses or showings, which cuts the chance of a deal collapsing after both sides are invested. The buyer signs an acknowledgment confirming receipt, and that acknowledgment becomes part of the transaction record.
What Happens If You Conceal a Defect
A buyer who discovers after closing that you hid a known problem has several options. The most common claim is for compensatory damages — the cost of repairing the defect plus any loss in property value. If the buyer can show you took active steps to conceal the problem, like painting over water damage or instructing your agent not to mention an issue, the claim becomes fraud rather than simple non-disclosure.
Fraud opens the door to more. A court can award punitive damages on top of repair costs. In extreme cases, a judge can order rescission, meaning the buyer returns the house and you return the money. Attorney fees and expert witness costs may also be recoverable, which makes these cases more affordable to bring than many sellers assume.
Sellers who assume they can stay quiet because the buyer “should have caught it during the inspection” are making an expensive bet. An inspector spends a few hours in the house. You lived there. Courts consistently hold that the seller’s knowledge of a hidden defect outweighs the buyer’s failure to find it independently.