When In Doubt, DISCLOSE – DISCLOSE – DISCLOSE

Disclosure of easements, conditions, and restrictions is a must. For example, a buyer recently walked on a contract because the seller had failed to disclose a building easement benefitting the next door neighbor. Neither the property disclosure statement nor any marketing materials made mention of the easement which, arguably, presented a future marketability issue to the prospective buyer. Paragraph #17 of the GCAAR Regional Sales Contract does permit conveyance of title subject to commonly acceptable easements, however a building easement (i.e., an agreement permitting the neighbor to build on a portion of the seller’s property) is certainly not on par with a public utility easement for running of gas and electric lines. The reason being is that a building easement gives rise to the issue of marketability, another requirement of title under the terms of the contract.

As a result of the seller’s failure to disclose, the buyer declared the contract void on the basis of a faulty disclosure and the fact that title was arguably unmarketable.