America's full and frequent use of the civil courts has served to batter down the last vestiges of "buyer beware."
Time after time, the courts have ruled that what the buyer doesn't know does hurt him - and the price of that pain must be paid by the seller and, more and more often, by the real estate agents involved.
Why are the agents liable? Especially since it's not the agent's property and he only knows what the seller has told him?
Because the courts consider the agent, rightly or wrongly, to be the professional in the deal - the ultimate authority on the house, and therefore, the person responsible for any statements made, or not made, about the property.
Which brings us to disclosure.
Most states already have some kind of property disclosure law. And while each law may have its own unique wrinkle, they all state just about the same thing: "Disclose all material facts that affect the value of the property."
Material defects can be that leaky roof that the seller forgot to tell the buyer about. Or it could be that pesky two feet of water in the basement every time it rains.
It could be radon gas build-up, rotted wood or an easement across the rose bushes. It could be anything that fundamentally affects the value of the property.
That's disclosure today. The real estate industry, however, has only begun to grapple with the problems of disclosure tomorrow.
For instance, what happens when you take that basic law, "Disclose all material facts that affect the value of the property," and add a few words to make it read, "Disclose all material and other pertinent facts that affect the value or desirability of a property."
Suddenly, disclosure takes on a whole new meaning.
In a nutshell, what exactly is the buyer entitled to know? Or, more to the point, is the buyer entitled to know anything about a house that could trigger his own peculiar set of insecurities?
What if the house was the scene of a murder? Or a suicide? Does the buyer have a right to know before putting his name on the dotted line?
A couple of years ago, California took a step toward peripheral disclosure after a court case over whether the buyers had a right to know whether the previous owner had AIDS.
As a result of that trial and subsequent legislation, California law now states that if there has been a murder, suicide or death in the house in the last three years, it must be disclosed. After three years, however, it need not be disclosed.
"But the agent must be honest and truthful if asked a direct question," said John Liberator of the California Real Esate Commission.
"Even after the three years, if the agent knows the history of the house and is asked about it, the agent has to tell the truth."
As for the AIDS question: No, in every state except Texas, sellers have no obligation to disclose that a member of the household has or had AIDS. Here again, however, if the buyer asks the question, then agents and sellers must be honest and truthful in their answer.
Texas maintains that AIDS is indeed a material fact that must be disclosed.
A good approach to disclosure, however, is for sellers to acknowledge that, yes, buyers really are strange people and, no, they really shouldn't have to live somewhere that will make them queasy.
And, yes, sellers, that means you should answer all those questions, no matter how silly they are, and with a straight face: "No, the roof doesn't leak. Yes, the basement does get wet sometimes. No, we haven't seen a vampire around here in, oh, ages and ages."
Buyers, on the other hand, need to acknowledge that what's important to them could indeed be considered just a little bit silly to a seller. But you should ask, anyhow.
If you don't want to live in a place where someone just died, say so.
The better idea, however, is to tell all these things to your real estate agent before you even start looking. The agent is not a psychologist, but he or she does have an interest in finding you a house you can live in.
Feel free to bore the agent with your phobias. The agent would rather be bored and find you a house you like than be sued for putting you into a house that makes you scream.
