The record-setting flooding we saw in Walworth, Racine, and Kenosha counties brings to mind an important disclosure topic for real estate transactions… but first, our thoughts and hearts at Wynn at Law, LLC go out to everyone impacted by the flooding. We hope things return to normal for all of you as quickly as possible.

 

In some of our earlier articles we’ve talked about real estate disclosures. Flood damage is one of those things that must be disclosed by the seller before the transaction. Specifically, the form asks if the property owner was ‘aware’ of ‘any’ past flooding. It’s difficult for anyone to not be ‘aware’ of the current flooding, the worst in history. The issue is the word ‘any.’ If a seller knew of flooding back in 2008, it has to be disclosed. If the sellers know the property flooded in 1973 – another historic flood event in our area – even if the homeowner didn’t live there, it has to be disclosed.
Past transactions on the real estate can identify flooding disclosures that happened before the current one.
Sellers should fully explain the circumstances behind any flooding damage and give as much accurate detail as possible. If it only happened once, say so. If it only happened in the record-smashing deluge we just went through, say so. Most importantly, in the disclosure, you can be very specific about the cleanup and repairs you made, as well as any steps you took to (hopefully) prevent the next massive downpour from causing the same damage this downpour created.
If a property was on the market before the rivers overflowed, the previous disclosure from before the flood might be inaccurate. In that case, the disclosure should be amended.
Both the buyer’s and seller’s attorney (and their real estate agents, too) have legal responsibilities related to the disclosure form. As fiduciaries, they are bound to advise their clients with entire openness. This requirement applies even if the seller just doesn’t want to disclose the current flooding because, ‘It was once in a lifetime and will never happen again and this will sabotage my sale or selling price.’
Does a buyer have to abort plans to buy a house just because it is or was ever in a flood? Of course not. Flooding in an extraordinary event like the one we’ve just seen does not mean the property will flood in every storm. If this storm tells us anything, it’s that even extraordinary records can fall.
*The content and material in this original post is for informational purposes only and does not constitute legal advice.  
Photo by Scott Stevens, used with permission.

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