By: Brown S.B. No. 438
By____________________ __B. No.______
73R5201 T
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.
1-24 Seller _____ is _____ is not occupying the Property.
2-1 If unoccupied, how long since Seller has occupied the Property?
2-2 ______________________
2-3 1. Seller has not received any notice, either oral or written,
2-4 regarding the need for repair or replacement of any portion of
2-5 the Property from any governmental agency, appraiser,
2-6 inspector, mortgage lender, repair service, or others, except
2-7 _______________________________________________________________
2-8 _______________________________________________________________
2-9 _______________________________________________________________
2-10 ______________________________________________________________.
2-11 2. The Property has the items checked below:
2-12 Write Yes (Y), No (N), or Unknown (U).
2-13 ____ Range ____ Oven ____ Microwave
2-14 ____ Dishwasher ____ Trash Compactor ____ Disposal
2-15 ____ Wash/Dry ____ Window Screens ____ Rain Gutters
2-16 Hookups
2-17 ____ Security System ____ Fire Detect ____ Intercom
2-18 Equip Sys
2-19 ____ TV Antenna ____ Cable TV Wiring ____ Satell.
2-20 Dish
2-21 ____ Ceiling Fan(s) ____ Attic Fan(s) ____ Exhaust
2-22 Fan
2-23 ____ Central A/C ____ Central Heating ____ Window A/C
2-24 ____ Plumbing System ____ Septic System ____ Public Sewer
2-25 ____ Patio/Decking ____ Outdoor Grill ____ Fences
2-26 ____ Pool ____ Sauna ___Spa __ Hot Tub
2-27 ____ Pool Equipment ____ Pool Heater ____ Auto. Lawn
3-1 Sprink. Sys
3-2 ____ Fireplace(s) & Chimney ____ Fireplace(s)
3-3 (Woodburning) & Chim. Mock
3-4 ____ Gas Lines (Nat./LP) ____ Gas Fixtures
3-5 Garage: ___ Attached ____ Not Attached ____ Carport
3-6 Garage Door Opener(s): ____ Electronic ____ Control(s)
3-7 Water Heater: ____ Gas ____ Electric
3-8 Water Supply: ___ City ____ Well ____ MUD ____ Co-op
3-9 Roof Type: ______________________ Age: _____________(approx)
3-10 Are you (Seller) aware of any of the above items that are not in
3-11 working condition, that have known defects, or that are in need or
3-12 repair? ___ Yes ___ No ____ Unknown.
3-13 If yes, then describe. (Attach additional sheets if necessary):
3-14 ___________________________________________________________________
3-15 ___________________________________________________________________
3-16 __________________________________________________________________.
3-17 3. Are you (Seller) aware of any known defects/malfunctions in any
3-18 of the following?
3-19 Write Yes (Y), No (N), or Unknown (U).
3-20 ____ Interior Walls ____ Ceilings ____ Floors
3-21 ____ Exterior Walls ____ Doors ____ Windows
3-22 ____ Roof ____ Foundation/ ____ Basement
3-23 Slab(s)
3-24 ____ Walls/Fences ____ Driveways ____ Sidewalks
3-25 ____ Plumbing/Sewers/ ____ Elect ____ Lighting
3-26 Septics System Fixtures
3-27 ____ Other Structural Components (Describe): _____________________
4-1 ___________________________________________________________________
4-2 __________________________________________________________________.
4-3 If any of the above is checked, explain. (Attach additional sheets
4-4 if necessary): ___________________________________________________
4-5 ___________________________________________________________________
4-6 __________________________________________________________________.
4-7 4. Are you (Seller) aware of any of the following conditions?
4-8 Write Yes (Y), No (N), or Unknown (U).
4-9 ____ Active Termites ____ Previous Structural
4-10 (includes wood-destroying or Roof Repair
4-11 insects)
4-12 ____ Termite or Wood Rot Damage ____ Hazardous or Toxic
4-13 Needing Repair Waste
4-14 ____ Previous Termite Damage ____ Asbestos
4-15 ____ Previous Termite Treatment ____ Urea formaldehyde
4-16 Insulation
4-17 ____ Previous Flooding ____ Radon Gas
4-18 ____ Improper Drainage ____ Lead Based Paint
4-19 ____ Water Penetration ____ Aluminum Wiring
4-20 ____ Located in 100-Year ____ Previous Fires
4-21 Floodplain
4-22 ____ Present Flood Insurance ____ Unplatted Easements
4-23 Coverage
4-24 ____ Landfill, Settling, Soil ____ Subsurface
4-25 Movement, Fault Lines Structure or Pits
4-26 If the answer to any of the above is yes, explain. (Attach
4-27 additional sheets if necessary): _________________________
5-1 ___________________________________________________________________
5-2 ___________________________________________________________________
5-3 __________________________________________________________________.
5-4 5. Are you (Seller) aware of any of the following?
5-5 Write Yes (Y), No (N), or Unknown (U).
5-6 ____ Room additions, structural modifications, or other
5-7 alterations or repairs made without necessary permits or not
5-8 in compliance with building codes in effect at that time.
5-9 ____ Homeowners' Association or maintenance fees or assessments.
5-10 ____ Any "common area" (facilities such as pools, tennis courts,
5-11 walkways, or other areas) co-owned in undivided interest with
5-12 others.
5-13 ____ Any notices of violations of deed restrictions or
5-14 governmental ordinances affecting the condition or use of the
5-15 Property.
5-16 ____ Any lawsuits directly or indirectly affecting the Property.
5-17 ____ Any condition of the Property which materially affects the
5-18 physical health or safety of an individual.
5-19 If the answer to any of the above is yes, explain. (Attach
5-20 additional sheets if necessary): _________________________
5-21 ___________________________________________________________________
5-22 ___________________________________________________________________
5-23 __________________________________________________________________.
5-24 ___________________________ _____________________________
5-25 Date Signature of Seller
5-26 The undersigned purchaser hereby acknowledges receipt of the
5-27 foregoing notice.
6-1 ___________________________ _____________________________
6-2 Date Signature of Purchaser
6-3 (c) A seller or seller's agent shall have no duty to make a
6-4 disclosure or release information related to whether a death or an
6-5 assault, of any kind or nature, occurred on the property except
6-6 that a seller or a seller's agent with personal knowledge that a
6-7 death or assault, other than a death caused by AIDS, HIV-related
6-8 illnesses, or HIV infection, occurred on the property shall
6-9 disclose that knowledge to a purchaser only upon receiving a
6-10 specific request in writing from the purchaser. A seller or
6-11 seller's agent shall have no duty to disclose or release
6-12 information related to whether a previous occupant had, may have
6-13 had, has, or may have AIDS, HIV related illnesses, or HIV infection
6-14 as defined by the Centers for Disease Control of the U.S. Public
6-15 Health Service.
6-16 (d) The notice shall be completed to the best of seller's
6-17 belief and knowledge as of the date the notice is completed and
6-18 signed by the seller. If the information required by the notice is
6-19 unknown to the seller, the seller shall indicate that fact on the
6-20 notice, and by that act is in compliance with this section.
6-21 (e) This section does not apply to a transfer:
6-22 (1) pursuant to a court order or foreclosure sale;
6-23 (2) by a trustee in bankruptcy;
6-24 (3) to a mortgage by a mortgagor or successor in
6-25 interest, or to a beneficiary of a deed of trust by a trustor or
6-26 successor in interest;
6-27 (4) by a mortgagee or a beneficiary under a deed of
7-1 trust who has acquired the real property at a sale conducted
7-2 pursuant to a power of sale under a deed of trust or a sale
7-3 pursuant to a court ordered foreclosure or has acquired the real
7-4 property by a deed in lieu of foreclosure;
7-5 (5) by a fiduciary in the course of the administration
7-6 of a decedent's estate, guardianship, conservatorship, or trust;
7-7 (6) from one co-owner to one or more other co-owners;
7-8 (7) made to a spouse or to a person or persons in the
7-9 lineal line of consanguinity of one or more of the transferors;
7-10 (8) between spouses resulting from a decree of
7-11 dissolution of marriage or a decree of legal separation or from a
7-12 property settlement agreement incidental to such a decree;
7-13 (9) to or from any governmental entity; or
7-14 (10) transfers of new residences of not less than one
7-15 or more than four dwelling units which have not previously been
7-16 occupied for residential purposes.
7-17 (f) The notice shall be delivered by the seller to the
7-18 purchaser or the purchaser's agent on or before the effective date
7-19 of an executory contract binding the purchaser to purchase the
7-20 property. In the event a contract of purchase and sale is entered
7-21 into without the seller providing the notice required by this
7-22 section, the purchaser shall be entitled to terminate the contract.
7-23 If however, the seller furnishes the required notice at or prior to
7-24 closing the purchase and sale contract and the purchaser elects to
7-25 close even though such notice was not timely furnished prior to
7-26 execution of the contract, it shall be conclusively presumed that
7-27 the purchaser has waived all rights to terminate the contract and
8-1 recover damages or other remedies or rights under this section,
8-2 except for any remedies or rights the purchaser may be entitled to
8-3 receive for an error, inaccuracy, or omission by the seller in the
8-4 notice.
8-5 (g) An agent for the seller is not liable for any error,
8-6 inaccuracy, or omission of any information in a notice delivered by
8-7 the seller under this section unless the agent had personal
8-8 knowledge of the error, inaccuracy or omission.
8-9 (h) If a conveyance of real property is made without the
8-10 seller providing the notice prescribed by this section, the
8-11 purchaser has a cause of action against the seller and may recover:
8-12 (1) actual damages not less than $1,000;
8-13 (2) costs of court; and
8-14 (3) reasonable attorneys' fees.
8-15 (i) The cause of action created by Subsection (h) is in
8-16 addition to any other cause of action the purchaser may have.
8-17 SECTION 2. This Act takes effect January 1, 1994.
8-18 SECTION 3. The importance of this legislation and the
8-19 crowded condition of the calendars in both houses create an
8-20 emergency and an imperative public necessity that the
8-21 constitutional rule requiring bills to be read on three several
8-22 days in each house be suspended, and this rule is hereby suspended.