The Property Condition Disclosure Act (PCDA) has undergone significant changes, impacting sellers of residential real property. As of March 20, 2024, these amendments introduce fresh obligations and alter the landscape for property transactions.
Background:
Since March 1, 2002, the PCDA required sellers to provide a Property Condition Disclosure Statement (PCDS) to buyers before signing a contract of sale. The PCDS included 48 questions, covering various aspects of the property’s condition. Sellers could respond with “yes,” “no,” “unknown,” or “not applicable.” Failure to answer all questions correctly could result in legal consequences.
Previous Landscape:
- Seller’s Duty: Sellers were obligated to deliver the PCDS to buyers or their agents.
- Remedies: The PCDA provided two remedies: a $500 credit for failure to deliver the PCDS and liability for willful failure to provide truthful answers based on actual knowledge.
- Broker Responsibilities: Listing real estate brokers had a duty to inform sellers about PCDS obligations, and buyer’s brokers informed buyers of their right to receive a PCDS.
- No Express Waiver: The PCDA did not expressly disallow waivers of compliance.
The Amended PCDA:
Effective March 20, 2024, the amended PCDA introduces critical changes:
- Elimination of $500 Credit: Sellers can no longer offer the $500 credit as an alternative to the PCDS.
- Expanded Questions: The updated PCDS now includes additional questions related to flooding issues.
- Liability for Actual Damages: Sellers who provide the PCDS or fail to provide a revised PCDS may be liable for actual damages.
Implications and Considerations:
- Seller Beware: The new PCDS questions require careful attention. Some are vague, and others have “catch-all” provisions that could expose sellers to second-guessing and claims.
- Caveat Emptor: In New York, the doctrine of caveat emptor generally applies, meaning sellers have no duty to disclose property conditions beyond active concealment, affirmative misrepresentation, or partial disclosure.
Exemptions
- New Construction: The PCDA does not apply to properties that have never been inhabited, such as newly constructed homes.
- Condominium Units and Cooperative Apartments: These types of properties are exempt from the PCDA requirements.
- Commercial Properties: If you’re selling a commercial property, the PCDA does not mandate a property condition disclosure.
- Foreclosed Properties: Properties that have gone through foreclosure proceedings are exempt.
- Multi-Family Dwellings: Buildings with five or more units fall outside the PCDA scope.
- Vacant Land: If you’re selling undeveloped land, the PCDA does not apply.
- Transfer Due to Court Order: Transfers resulting from court orders (e.g., probate, mortgage foreclosure, bankruptcy, legal partition, or divorce) are exempt.
- HUD Properties or Government Entities: Properties owned by HUD or other government entities are not subject to the PCDA.
Remember that these exemptions apply to specific scenarios, and it’s essential to consult legal advice for your specific situation. 🏠🔍
Conclusion:
The amended PCDA takes us into uncharted territory. Sellers must adapt to the removal of the $500 credit and navigate the expanded PCDS questions. As the real estate landscape evolves, vigilance and compliance are essential.
