By Brimer                                             H.B. No. 1081
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to a seller's duty to disclose the condition of real
    1-3  property to a purchaser.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subchapter A, Chapter 5, Property Code, is
    1-6  amended by adding Section 5.008 to read as follows:
    1-7        Sec. 5.008.  SELLER'S DISCLOSURE OF PROPERTY CONDITION.  (a)
    1-8  A seller of residential real property comprising not fewer than one
    1-9  or more than four dwelling units located in this state shall give
   1-10  to the purchaser of the property a written notice as prescribed by
   1-11  this section or a written notice substantially similar to the
   1-12  notice prescribed by this section which contains, at a minimum, all
   1-13  of the items in the notice prescribed by this section.
   1-14        (b)  The notice must be executed and must, at a minimum, read
   1-15  substantially similar to the following:
   1-16                      SELLER'S DISCLOSURE NOTICE
   1-17  CONCERNING THE PROPERTY AT                                         
   1-18                               (Street Address and City)
   1-19        THIS NOTICE IS A DISCLOSURE OF SELLER'S KNOWLEDGE OF
   1-20        THE CONDITION OF THE PROPERTY AS OF THE DATE SIGNED BY
   1-21        SELLER AND IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR
   1-22        WARRANTIES THE PURCHASER MAY WISH TO OBTAIN.  IT IS NOT
   1-23        A WARRANTY OF ANY KIND BY SELLER OR SELLER'S AGENTS.
    2-1  Seller _____ is _____ is not occupying the Property.
    2-2  If unoccupied, how long since Seller has occupied the Property?
    2-3  ______________________
    2-4  1.  Seller has not received any notice, either oral or written,
    2-5      regarding the need for repair or replacement of any portion of
    2-6      the Property from any governmental agency, appraiser,
    2-7      inspector,  mortgage  lender, repair service, or others, except
    2-8      _______________________________________________________________
    2-9      _______________________________________________________________
   2-10      _______________________________________________________________
   2-11      ______________________________________________________________.
   2-12  2.  The Property has the items checked below:
   2-13  Write Yes (Y), No (N), or Unknown (U).
   2-14  ____ Range              ____ Oven              ____ Microwave
   2-15  ____ Dishwasher         ____ Trash Compactor   ____ Disposal
   2-16  ____ Wash/Dry           ____ Window Screens    ____ Rain Gutters
   2-17       Hookups
   2-18  ____ Security System    ____ Fire Detect       ____ Intercom
   2-19                               Equip                  Sys
   2-20  ____ TV Antenna         ____ Cable TV Wiring   ____ Satell.
   2-21                                                      Dish
   2-22  ____ Ceiling Fan(s)     ____ Attic Fan(s)      ____ Exhaust
   2-23                                                      Fan
   2-24  ____ Central A/C        ____ Central Heating   ____ Window A/C
   2-25  ____ Plumbing System    ____ Septic System     ____ Public Sewer
    3-1  ____ Patio/Decking      ____ Outdoor Grill     ____ Fences
    3-2  ____ Pool               ____ Sauna             ___Spa __ Hot Tub
    3-3  ____ Pool Equipment     ____ Pool Heater       ____ Auto. Lawn
    3-4                                                      Sprink. Sys
    3-5  ____ Fireplace(s) & Chimney                    ____ Fireplace(s)
    3-6       (Woodburning)                                  & Chim. Mock
    3-7  ____ Gas Lines (Nat./LP)                       ____ Gas Fixtures
    3-8  Garage:  ___ Attached   ____ Not Attached      ____ Carport
    3-9  Garage Door Opener(s):  ____ Electronic        ____ Control(s)
   3-10  Water Heater:           ____ Gas               ____ Electric
   3-11  Water Supply:  ___ City ____ Well    ____ MUD  ____ Co-op
   3-12  Roof Type:  ______________________   Age:  _____________ (approx)
   3-13  Are you (Seller) aware of any of the above items that are not in
   3-14  working condition, that have known defects, or that are in need or
   3-15  repair? ___ Yes ___ No ____ Unknown.
   3-16  If yes, then  describe.  (Attach  additional sheets  if necessary):
   3-17  ___________________________________________________________________
   3-18  ___________________________________________________________________
   3-19  __________________________________________________________________.
   3-20  3.  Are you (Seller) aware of any known defects/malfunctions in any
   3-21      of the following?
   3-22  Write Yes (Y), No (N), or Unknown (U).
   3-23  ____ Interior Walls       ____ Ceilings       ____ Floors
   3-24  ____ Exterior Walls       ____ Doors          ____ Windows
   3-25  ____ Roof                 ____ Foundation/     ____ Basement
    4-1                                 Slab(s)
    4-2  ____ Walls/Fences         ____ Driveways       ____ Sidewalks
    4-3  ____ Plumbing/Sewers/     ____ Elect           ____ Lighting
    4-4       Septics                   System               Fixtures
    4-5  ____ Other Structural Components (Describe):  _____________________
    4-6  ___________________________________________________________________
    4-7  __________________________________________________________________.
    4-8  If any of the above is checked, explain.  (Attach additional sheets
    4-9  if necessary):  ___________________________________________________
   4-10  ___________________________________________________________________
   4-11  __________________________________________________________________.
   4-12  4.  Are you (Seller) aware of any of the following conditions?
   4-13  Write Yes (Y), No (N), or Unknown (U).
   4-14  ____ Active Termites                  ____ Previous Structural
   4-15       (includes wood-destroying             or Roof Repair
   4-16        insects)
   4-17  ____ Termite or Wood Rot Damage       ____ Hazardous or Toxic
   4-18       Needing Repair                        Waste
   4-19  ____ Previous Termite Damage          ____ Asbestos
   4-20  ____ Previous Termite Treatment       ____ Urea formaldehyde
   4-21                                             Insulation
   4-22  ____ Previous Flooding                ____ Radon Gas
   4-23  ____ Improper Drainage                ____ Lead Based Paint
   4-24  ____ Water Penetration                ____ Aluminum Wiring
   4-25  ____ Located in 100-Year              ____ Previous Fires
    5-1       Floodplain
    5-2  ____ Present Flood Insurance          ____ Unplatted Easements
    5-3       Coverage
    5-4  ____ Landfill, Settling, Soil         ____ Subsurface
    5-5       Movement, Fault Lines                 Structure or Pits
    5-6  If the answer to any of the above is yes, explain.  (Attach
    5-7  additional sheets if necessary):  _________________________
    5-8  ___________________________________________________________________
    5-9  ___________________________________________________________________
   5-10  __________________________________________________________________.
   5-11  5.  Are you (Seller) aware of any of the following?
   5-12  Write Yes (Y), No (N), or Unknown (U).
   5-13  ____  Room additions, structural modifications, or other
   5-14        alterations or repairs made without necessary permits or not
   5-15        in compliance with building codes in effect at that time.
   5-16  ____  Homeowners' Association or maintenance fees or assessments.
   5-17  ____  Any "common area" (facilities such as pools, tennis courts,
   5-18        walkways, or other areas) co-owned in undivided interest with
   5-19        others.
   5-20  ____  Any notices of violations of deed restrictions or
   5-21        governmental ordinances affecting the condition or use of the
   5-22        Property.
   5-23  ____  Any lawsuits directly or indirectly affecting the Property.
   5-24  ____  Any condition of the Property which materially affects the
   5-25        physical health or safety of an individual.
    6-1  If the answer to any of the above is yes, explain.  (Attach
    6-2  additional sheets if necessary):  _________________________
    6-3  ___________________________________________________________________
    6-4  ___________________________________________________________________
    6-5  __________________________________________________________________.
    6-6  ___________________________           _____________________________
    6-7  Date                                  Signature of Seller
    6-8  The undersigned purchaser hereby acknowledges receipt of the
    6-9  foregoing notice.
   6-10  ___________________________           _____________________________
   6-11  Date                                  Signature of Purchaser
   6-12        (c)  A seller or seller's agent shall have no duty to make a
   6-13  disclosure or release information related to whether a death or an
   6-14  assault, of any kind or nature, occurred on the property except
   6-15  that a seller or a seller's agent with personal knowledge that a
   6-16  death or assault, other than a death caused by AIDS, HIV-related
   6-17  illnesses, or HIV infection, occurred on the property shall
   6-18  disclose that knowledge to a purchaser only upon receiving a
   6-19  specific request in writing from the purchaser.  A seller or
   6-20  seller's agent shall have no duty to disclose or release
   6-21  information related to whether a previous occupant had, may have
   6-22  had, has, or may have AIDS, HIV related illnesses, or HIV infection
   6-23  as defined by the Centers for Disease Control of the U.S. Public
   6-24  Health Service.
   6-25        (d)  The notice shall be completed to the best of seller's
    7-1  belief and knowledge as of the date the notice is completed and
    7-2  signed by the seller.  If the information required by the notice is
    7-3  unknown to the seller, the seller shall indicate that fact on the
    7-4  notice, and by that act is in compliance with this section.
    7-5        (e)  This section does not apply to a transfer:
    7-6              (1)  pursuant to a court order or foreclosure sale;
    7-7              (2)  by a trustee in bankruptcy;
    7-8              (3)  to a mortgage by a mortgagor or successor in
    7-9  interest, or to a beneficiary of a deed of trust by a trustor or
   7-10  successor in interest;
   7-11              (4)  by a mortgagee or a beneficiary under a deed of
   7-12  trust who has acquired the real property at a sale conducted
   7-13  pursuant to a power of sale under a deed of trust or a sale
   7-14  pursuant to a court ordered foreclosure or has acquired the real
   7-15  property by a deed in lieu of foreclosure;
   7-16              (5)  by a fiduciary in the course of the administration
   7-17  of a decedent's estate, guardianship, conservatorship, or trust;
   7-18              (6)  from one co-owner to one or more other co-owners;
   7-19              (7)  made to a spouse or to a person or persons in the
   7-20  lineal line of consanguinity of one or more of the transferors;
   7-21              (8)  between spouses resulting from a decree of
   7-22  dissolution of marriage or a decree of legal separation or from a
   7-23  property settlement agreement incidental to such a decree;
   7-24              (9)  to or from any governmental entity; or
   7-25              (10)  transfers of new residences of not less than one
    8-1  or more than four dwelling units which have not previously been
    8-2  occupied for residential purposes.
    8-3        (f)  The notice shall be delivered by the seller to the
    8-4  purchaser or the purchaser's agent on or before the effective date
    8-5  of an executory contract binding the purchaser to purchase the
    8-6  property.  In the event a contract of purchase and sale is entered
    8-7  into without the seller providing the notice required by this
    8-8  section, the purchaser shall be entitled to terminate the contract.
    8-9  If however, the seller furnishes the required notice at or prior to
   8-10  closing the purchase and sale contract and the purchaser elects to
   8-11  close even though such notice was not timely furnished prior to
   8-12  execution of the contract, it shall be conclusively presumed that
   8-13  the purchaser has waived all rights to terminate the contract and
   8-14  recover damages or other remedies or rights under this section,
   8-15  except for any remedies or rights the purchaser may be entitled to
   8-16  receive for an error, inaccuracy, or omission by the seller in the
   8-17  notice.
   8-18        (g)  An agent for the seller is not liable for any error,
   8-19  inaccuracy, or omission of any information in a notice delivered by
   8-20  the seller under this section unless the agent had personal
   8-21  knowledge of the error, inaccuracy or omission.
   8-22        (h)  If a conveyance of real property is made without the
   8-23  seller providing the notice prescribed by this section, the
   8-24  purchaser has a cause of action against the seller and may recover:
   8-25              (1)  actual damages not less than $1,000;
    9-1              (2)  costs of court; and
    9-2              (3)  reasonable attorneys' fees.
    9-3        (i)  The cause of action created by Subsection (h) is in
    9-4  addition to any other cause of action the purchaser may have.
    9-5        SECTION 2.  This Act takes effect January 1, 1994.
    9-6        SECTION 3.  The importance of this legislation and the
    9-7  crowded condition of the calendars in both houses create an
    9-8  emergency and an imperative public necessity that the
    9-9  constitutional rule requiring bills to be read on three several
   9-10  days in each house be suspended, and this rule is hereby suspended.