To disclose or not to disclose?

To prevent problems, sellers should disclose freely and liberally, Goodman says.

“You should disclose what you’re obligated to disclose, and anything you think could be relevant to the other party,” she says.

Fortunato disagrees, stating that not everyone has to disclose everything under the law, and that doing so can open a seller up to lawsuits. Fortunato recalls a complicated case in which the executor of an estate was sued for failing to disclose problems, but that disclosure laws did not apply in that case. Agents advising clients to make disclosures could also open themselves up to allegations of practicing law without a license.

“It’s hard to know when to disclose, which is why you need to consult a lawyer who represents your brokerage,” he stresses.

Fortunato himself once had a case in which his client sold a home and disclosed to the buyer that there had been some water damage. “That was not a problem with the original sale,” Fortunato says. “However, a few years later, the home was sold again, and the water damage was not disclosed, which led to that seller getting sued.”

Fortunato’s client, the original seller, was brought into the lawsuit by the seller who had failed to make the disclosure, with the hope that he would want to share in a settlement. Ultimately, Fortunato says, his client refused, illustrating why the knowledge and protection offered by working with a real estate attorney are irreplaceable.

“He did everything right, and in the end he was vindicated – but it was costly for him.”