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17 Mar 2010
The Seller Disclosure Statement in Washington (aka Form 17) is a mandatory form all sellers must complete and give to their buyers. It creates some confusion for both buyers and sellers, and here I answer a buyer’s question, which is basically this question, “What about some of the answers that indicate there may be a problem, and what about all the “Don’t Know” answers? What am I supposed to do with the seller’s answers, and how can I find out more information?”
You can see the entire form with all the questions online in RCW 64.06.020: Seller Disclosure Statement
The Form 17 is a state mandated form, and the seller only has three options: Yes, No, and Don’t Know. If a seller answers “Yes” to any question, they have just guaranteed that the answer is an absolute yes, which is the same in the law as an insurance policy on which you could sue them if the answer turned out not to be 100% true. If they answer “No” and the real answer is anything less than 100% no, again they could be sued. If they answer “Don’t Know” they are answering with the safest answer, but it may also be the most truthful answer. After all who knows that a particular condition of the house is either 100% yes or 100% no? Who would be willing to be sued if they were even slightly incorrect? When a person answers “Don’t Know” they reduce the possibility of being sued almost completely. Part of the reason is that it may be the most truthful answer, but even more importantly it would be very difficult to come up with actual evidence you could use in a courtroom under the strict Federal or State Rules of Evidence that they knew inside their head. Unless there is external evidence, there is virtually no way to prove what someone knew or didn’t know inside their own mind.
This is another example of politicians creating a law that does not really resolve the problem they claim it will. The mandatory Form 17 was intended to protect buyers and stop any seller misrepresentations, or at least to give a buyer a remedy if a seller does misrepresent the condition of a property. But as you can see, all a person has to do is answer “Don’t Know” on nearly every question, and they are just as safe as if there was no Form 17 at all and no law requiring it. And I would point out one minor reality that seems always to escape the law makers: someone who would misrepresent something about a house is not suddenly going to find Jesus and tell the truth on a Form 17. All they would have to do is misrepresent something they knew by checking “Don’t Know,” and they are safe. Politicians and their lawyers are not as smart as they think they are. They often create more problems with unintended consequences than they solve with statutory laws.
There are some questions to which a seller can clearly answer “Yes” or “No” because those involve a black and white fact, such as whether a propane tank is owned or leased.
This explains why there are so many “Don’t Know” boxes checked on every Form 17. It doesn’t help explain facts at all when they check “Don’t Know,” but that is why the home inspection, the septic inspection, and the well inspection become important for buyers. These inspections are actually reliable and factual. The Form 17 is not.
It’s always important to see what the sellers reveal in Form 17, but frankly I’ve always thought these Form 17’s are something the seller is forced to do by state law and makes them especially sensitive and careful to be sure they do not commit themselves to a yes or no in order to avoid being sued. I think a buyer’s best option is not to rely on the Form 17, which is nearly useless anyway, and to rely upon one’s own inspections.
One of the requirements of this law is that a buyer acknowledge that they received it. Acknowledgment doesn’t waive a buyer’s right to address any issues that come up as a result of an inspection. Acknowledgment must be by signature on line 263 with the date, and also by initialing at the bottom of each page with the date. Going through these motions does seem a bit wasted, doesn’t it? I’ve never seen the Form 17 actually help any buyers.
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