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Legal Question: Don't Ask, Don't Tell?

Scales of Justice I've had a client that recently asked me to do a marketing package on a property. (It's a beautiful place). One problem... she told me that a few years back there was a brutal murder there of a small child.

What does the LAW say about when/if this information must be divulged? Apparently there's a neighbor that likes to run out and tell any prospective buyers the gory details.

I've advised her to do three things:

Contact her broker/lawyer on her legal obligations
Have the seller get a cease and desist letter out to the neighbor immediately
Refrain from highlighting the "family friendly" nature of the area and the swimming pool/playground next door

I'm not a lawyer and I'm not one to be secretive -- especially in business dealings -- and I don't know how the law treats this type of situation in real estate disclosures/transactions.

I know this would throw me into an ethical tailspin for awhile, but I'm curious... what are the rules?

Posted by Angela Parker on 06/23/2007 02:24 AM

Comments (48)

legal, ethics, disclosure

48 Comments on Legal Question: Don't Ask, Don't Tell?

JUN

2007

I'm only commenting so this question , your blog, gets some attention and hopefully someone will give you advice.

My PERSONAL take is that the neighbor has every right to say what she wants. In this case, if it's true.it's public record anyway.

My take on the issue of selling the property..... (I'm a Title Guy)..... well yeah, if no one asks..what''s to tell? You are assisting someone in selling a property...whether it is a Mansion, or a dilapidated row home...the skeletons in the closet are in EVERY home.

I don't see an 'ethical' question here. It's a physical structure.

Would it be different if 'only' a rape or spousal abuse took place? Not in my mind. (personal opinion).

I cannot answer all your questions, but have had quite a bit of experience with journalism law. I doubt you can get a cease and desist on the neighbor IF what she says is true. The way you can get on someone's case for saying things is if they are saying false things -- not that it is very easy to do anything other than suing for libel. Far as I know, in libel, TRUTH is a complete defense. Of course one might be in a position to have to prove that a statement is fact. I imagine that would be pretty easy for this woman to do, if it was widely reported or is neighborhood legend. Regardless of what any rules might be, I am pretty sure that if you did not disclose this, and a buyer found out, a lawsuit would ensue. People get real creeped out about meth labs, places where people died of fires or murder.

Well, knowing that it will be probably the first thing that neighbor tells a new buyer... what do you think that buyer will do when they hear? Here in California we have to disclose deaths upon the property within the last 3 years. Some say that may be even longer for "notorious" or other more gruesome crimes. We had a home here in a local upscale city with a murder (random murder), and as far as I know the disclosed that even 7-8 years later when the home was on the market. How would you feel if you bought that house without knowing? How will you feel if you are the "talk of the town" as one who bought the house.. ? Just questions.. I'd talk to an attorney to be clear on the law in your area. Its just a tough call.

As an aside, I would never advertise a home as being in a "family friendly" area, I worry that is a fair housing violation. What does family friendly mean? Unfriendly to non families? or non traditional families? or? That is something I try to stay away from. I advertise the home, and try not to focus attention on who should buy it.

Angela - How awful. This would be a tough one to market. I cannot give you any advice that would be helpful to you because I'm licensed in California. However, I do think that the neighbor has every right to tell the story because as Rob said it is public record. However, I do disagree that you needn't disclose. Here in CA. the seller must disclose if anyone living in the home has died in the last 5 years. It needn't be disclosed if it was someone visiting the home. However, in a case like this, there is such a stigma, I think to protect yourself and the seller, if you list it you must disclose, disclose, disclose. You want to be certain that the buyer gets no surprises and decides that a lawsuit and damages are the remedy. What does your broker advise?

Well, it seems to me that the "legal" side of what the neighbor is doing is purposefully and maliciously interfering with the homeowner's ability to sell the property. Thus, if the price has to be dropped substantially to make a sale occur -- isn't the loss of potential income a direct result of the neighbor?

The neighbor has already "run off" several interested potential buyers.

On a personal level -- I'd want to KNOW if something like that happened in a home I was planning to buy.

In reference to my work for this agent, it really doesn't matter. I've suggested that she target market this to a young professional couple -- turning the extra bedrooms into "his and her" home offices (via staging) and skip the whole family aspect when marketing the property.

Steven, I like your answer, but I'm curious as to where you think the 'line' is drawn between disclosure and non-disclosure.

I mean.... some people may get 'freaked out' or 'creeped out' if a Muslim FOR EXAMPLE owned the home previously, should they be racist/prejudice...correct?

I'm not sure Angela, it is the truth (what the neighbor is saying) so I'm not sure if the truth is malicious (?) ... California laws vary from other states, though I think Marlene and I seem to be on the same page that we'd be more apt to disclose that... there is quite a stigma attached to a home where a murder has happened, and I would be talking to your attorney (as well as your client talking to hers), and your broker.

"Here in California we have to disclose deaths upon the property within the last 3 years."

Wow, I NEVER knew laws like that existed.

You mean if a widow died in her bed and her children wanted to sell off her home 3 years later.it's LEGALLY required to disclose that?

Wow. Why? Any idea?

Hi Angela,

Boy did your post strike a nerve. I don't know what the law in your state is but in California if a person has died in a home it has to be disclosed for three years. Two years ago a young girl across the street committed suicide. This was a completely traumatic event for myself and my family from which we still haven't recovered.

The owners quickly sold the house and apparently the woman who bought it was made aware of the death but didn't ask for details. Then, when she moved in some of the neighbors told her and nine months later she sold at a loss. The new owner bought it as an investment property and did not disclose the information to a family interested in leasing. When they were visiting the neighbor next door told them what happened and they backed out of the deal.

Now here's where I feel really strongly about this. I believe anyone leasing that house has a right to know what happened. The new owner who bought the house well below market value is capitalizing on a tradegy. Ethically and morally I believe he has an obligation (even if it isn't required by law in a lease) to disclose all information to any possible tenants. While no one will ever hear about it from me, you cannot order an entire neighborhood to "keep the secret." Everything in life, be it interpersonal or business must first start from a place of integrity.

I am so blown away by a law like this.

What does a person's death have to do with a new buyer?

and please confirm for me, that in CA...REGARDLESS of circumstance....ANY death in the home is legally required to be disclosed. That's what I am reading. Correct?

(I find it 'weird'....for many reasons....but in PA , I brought my father home.TO DIE....as part of a hospice program. It's as if in CA... people aren't 'supposed' to die in their homes?)

Rob, yes, natural causes are also disclosed, in fact, I have one now. I'm not sure the exact origins of the law, but yes, deaths for any reason (other than AIDS) must be disclosed (if in the preceding 3 years). It reads ... death of an occupant upon property. So its up for grabs if it has to be dislosed if a visitor died or whatever. I do believe it just strongly rooted in the laws of disclosure that people have the right to know all "material" facts about a property. Some cultures won't live in a home where someone died. That is their right. I've had some people not care at all... some won't live in a home ever, where someone died (now of course beyond 3 years you will have no idea). I personally might be ok if someone died of natural causes, but refused to buy a house I liked when I heard their child drown in the backyard pool. I'm glad the disclosure laws are there for me to decide for myself. And , no matter the law or the time frame.. if you are ever asked if someone died you must tell the truth.. even if it was 10 years ago (assuming you would know information like that).

This fascinates me, and I honestly have no idea if PA has this law. (I'll check it out).

Why the 'other than AID's ' part? Would that not be MORE a reason SOME, SOME people would want to know a death occurred?

Died of AID's ....can't tell you.....

Died of tuberculosis...HAVE to tell you....

odd.

Well you disclose a death, just not the manner in the case of AIDS. I guess because many believe it is only a gay disease it can lead to discrimination of gay people in someway? That is my guess. In California we can not discriminate on the basis of sexual orientation either.. I know in some states you still can. I suppose it has to do with that... maybe :)

It usually isn't a huge deal... there is a check mark on one of our disclosure forms, and the seller just briefly describes: "husband died of cancer at home" or "wife died during hospice care" , etc. etc.

Angela,

Obviously you would need to contact a lawyer to see if you could shut the woman up. Again, as it is the truth I do not think you can do anything. That is all part of the right of free speech, like it or not. For example, let us say a realtor got a DUI and was convicted. Another competitor could tell other people that so and so across town was convicted of drunk driving. It would hurt business for the other realtor but he could probably do nothing about it -- it is truth and anyone could look it up in the court records. When does free speech end? Free speech ends when a person maliciously, and without correct information, slanders or libel's someone. But, unpleasant as it might be, truth is truth and I do not believe it can be stifled through a legal means. I say this, again, as someone who spent several years managing news people in broadcasting and dealing with lawyers on libel or slander issues. In broadcasting, although it is speech (slander) we worked from written copy so lawsuits were "libel" suits because the words were written down. A classic example of truth making someone immune from lawsuit for damages, even when the statements cause serious consequences, would be Teddy Kennedy and Chapaquidick. Commentators and political opponents referencing it have cost him higher political office. I am sure he would love to silence Rush Limbaugh. Another example would be the high profile religious leaders who were caught in scandals. They would rather not have Jay Leno talking about their escapades, but he is telling the truth so immune to lawsuit.

Rob,

I guess I do not have an exact answer on that. Regarding the meth lab, here in WA state, the state has made the decision there. It will be on the legal title of the home FOREVER. Not five years or 25, but for the life of the house. You can imagine how hard that makes a house to sell but some agents are doing it. I have inspected a couple. As far as drawing the line, and again this is me thinking about it late at night and not dwelling on it, there is a big difference between a murder and a widow dying in bed. I think just about everyone knows that, if you live in an older home, someone might have died there. On the other hand, in my neighborhood there is a house for sale, has been for two years, where two registered sex offenders were executed by a lone gunman in a nationally famous case. That house would sell better if that fact could be swept under the rug. Is that right? I think not. There is also a house here where Ken Bianchi, the convicted Hillside Strangler lived at the time of his arrest. No clue how they handle that one. And the home where John Muhammad, the sniper from a few years ago, lived is here too -- again no clue how that goes as far as sales or renting. Any disclosure that treads on civil rights laws is a no no. I know that in many jurisdictions registered sex offenders, living within a certain distance of a home, have to be disclosed as well. In many cases that is kind of silly because, at least here, those folks often rent and are in a neighborhood one day and have moved another. People are mobile.

A murder in home or any other violent crime occurring on a property that would cause the it to be stigmatized does not have to be disclosed in Alabama...only health and safety issues. As for not disclosing that someone had died in a home from AIDS, persons with AIDS are protected under the Americans with Disabilities Act. That may be the reason that AIDS cannot be revealed as the cause of death.

What I did with a property I had with a similar problem was to give the prospective buyer the case number and have them contact the police.. as far as the neighbor goes.. you have no recourse against her and I suspect that the more attention she receives the harder it will be to get her to be quiet...My advice would be to ignore her and treat the whole matter in a very businesslike way..

In Arizona you do not need to disclose this information, but if the neighbor is going to do it for you, perhaps pull her aside, ask her if when she sells her house if she would like all prospects told that she lived RIGHT NEXT DOOR to it. Almost as bad.

I found out after I moved here that the previous owner died in her MB here. It's sad, but I don't dwell on it.

Thank you for your informative post, evertime I read blogs like yours, it makes me proud of being part of this community, thank you.

Angela

Since there's appears to be legitimate debate over this situation, I would disclose the murder.

Why take a chance with a new owner using this example as test litigation or speaking negatively of you to the media?

There is no concept resembling "don't ask - don't tell" in a residential real estate transaction.

The consumer has a right to know and you have a duty to tell them.

Aside from the legal issue, isn't there an ethical one here? I don't think it needs to be in the marketing material, but I do believe it should be stated matter of factly in the property condition disclosure form in the comments section. I agree with the earlier comment suggesting that a reference be provided to the police report, so the buyer and buyer's agent can get the facts and not be left to rely upon neighbor's gossip.

And what is that neighbor thinking... doesn't he/she realize that this gossip only brings down his/her own property value? Maybe someone should mention that to her, and let her know that the information is being disclosed in an appropriate manner.

It's a toughie, but this is not a unique situation, and lots of people live in homes where crimes were committed at some point in their history. Apparently, not everyone is scared away by the possibiity of ghosts in the attic.

You need to find out what the LAW is in your state concerning what is called a "stygmatized" property. In the state of Maryland, for example, there is no requirement to disclose that someone died, was murdered, committed suicide or whatever on the property, because it is simply not relevant to the condition of the house. This is not a case of a material defect. If someone where sick with HIV/AIDS, or had a mental illness that would not be relevant either, any more than if someone died of old age. Its a matter of state law and you need to look this up to know what ground you are standing on.

As for gossipy neighbors, there is not much you can do about that, unless they are lying and harassing people.

Good luck!

All I can say, talk to the sellers and disclose, disclose, disclose. This is one of the hardest things about real estate.

GOOD LUCK!

I know that disclosure is the best (and in many states) the only way to go. I agree.

Catherine - Thanks for the info on AIDS... Does anyone know for sure why AIDS doesn't have to be disclosed? Or is it just that the death must be mentioned, but not the MANNER of the death? Another "I just want to know" question.

Ed - I agree, it should be disclosed, but the DETAILS are rather unsettling. No one wants to hear that the house they want to buy was the torture chamber and eventual murder site of a small child.

Kaye and Margaret - I love your approach. A reference to the police report would satisfy my sense of moral/ethical obligation to any potential buyer (if I were the Realtor) without damaging the listing client's ability to sell.

Francisco - You are so kind! Having this group to ASK these questions is a great resource for me, personally.

Rene and Dana - that was the term I was trying to find... "stygmatized property"... thanks!

Under the category of the golden rule, I'd want to know, so I'd disclose as recommended above with a "death on property" and a police report number (if I were the real estate agent).

Since I'm detail-oriented, I'd go look up the police report (if I were considering buying the place). I'm not really "superstitious" -- but it's not a place I'd want to occupy with my family. *shrug* It's just not.

Catherine - I'm not sure if truth can be considered malicious -- but the method of delivery and the reason for divulging can be, IMHO. (I think the neighbor is a bored busybody with an affinity for the macabre). How's that for judgmental?

Great comments and lots of thought-provoking stuff here. Thanks!

Sorry i had to go to bed last night, I missed a bit.

Question - is the 'death on property' found on a 'typical' Title search? How does any Realtor 'know' when they originally take the listing?

Rob, no it wouldn't be found on a title search. You have to rely on your sellers to tell the truth. If its not required in your state to be disclosed then the question may never come up. Here it is, and is on a form, so the subject comes up and like any other material fact or disclosure regarding their house, we trust them to tell the truth.. and we advise them to disclose, disclose, disclose. A Realtor wouldn't know if no one told them, and they certainly wouldn't know if the seller themselves didn't know. If it was a notorious crime however, I think as a professional in the area, you may be hard pressed to say you didn't know... should you have known would be the question in court.

In Alaska, they recently changed the law. We only have to disclose deaths within one year. However, in practice, I think violent deaths are usually disclosed (By the buyer's agent) because most of us, I believe, would really want to know. I know I would.

"I agree, it should be disclosed, but the DETAILS are rather unsettling. No one wants to hear that the house they want to buy was the torture chamber and eventual murder site of a small child."

If it is disclosed by you the people will probably check into it anyway. That is if the word "murder" is used. I would go to the library and look it up or go online, if I were looking at the house. I think the neighbor might be annoying but it seems one could not really say she is chasing people off as they obviously are not comfortable with the site. One way or another, they need to know. One could hardly sell such a notorias house without mentioning the history, without expecting a lawsuit. Lawyers could find good material here if someone bought and then claimed all types of related stress and trauma when they found out.

Here in Washington State, a death or murder is not required by law to be disclosed. That said the ethics involved are another issue. If someone asks if the death occurred in the house and you know about it you have to answer honestly. As to the neighbor telling potential buyers about the murder, I don't think there's anything you can do to stop that from happening.

I once had a buyer find out that there were two halfway houses on the street of his new home. He became furious at the sellers and their agent for not disclosing that fact. Luckily he didn't get mad at me, but then I had no knowledge of the situation. He talked to some of the neighbors about it and when he found out there had never been any problems in the neighborhood he decided to go ahead and purchased the house.

The sellers in his home or in a precarious situation, in the right situation for the right price someone will buy it.

I think Michael is right on. Glad he lives in Bellingham.

AR is so cool, you can't read all the stuff in the magzines, but AR, read it blog to blog, thanks for your post!

My personal opinion is that if there is ever a question, disclosure is the better way to go. Ask the seller to put herself in the buyers shoes. Legally here in Colorado a murder does not need to be disclosed.

Ah, I can answer the "except by AIDS" part of the CA law. That's federal fair housing act law. AIDS falls under handicapped and cannot be discriminated against.

That being said, I can't speak for Kentucky, but in NC, on the surface, that is not material fact and need not be disclosed. The CA law is blowing my mind. I can't believe that deaths in the last 3 years must be disclosed. I would imagine that law is more an exception than a rule across most states.

Thanks, Anne-Marie!

Anne Marie....

"Ah, I can answer the "except by AIDS" part of the CA law. That's federal fair housing act law. AIDS falls under handicapped and cannot be discriminated against."

If we are discussing whether a death occured on a property.... what does 'handicapped' have to do with it? Could you elaborate? Where is the discrimination part fit in, if someone died due to having AIDS..'3' years prior?

Rob, you still disclose the death, but due to anti-discrimination laws , in the case of AIDS the manner of death would not be disclosed.

Thanks.

Strange law, but thanks.

JUN

2007

I was under the impression it had to be disclosed. But the neighbor running out to tell a prosective client as they come up to see the home is not the best way, IMO, for someone to find out.

I guess I would rather a client at least see the home, see if it's something they really would like and then let them know about the history of the home. The way you described it, this murder happened a while back? It is a blemish for the property but if it's not something recent. Maybe a new prospect will consider getting past that history if the home meets their needs? The situation is a tough one.

In Texas we must disclose any unnatural deaths on the property. Fortunately we live in a small town with lower than average murder rate so we don't run into it much at all. The neighborh probably can and will say what she wants to and I'm not sure how you could stop her. You might try stopping by there and very nicely telling her that sensationalizing the murder may get an unoccupied house next door that could easily be used by vandals, druggies, etc... and would generally lower the value of her property.

California has legal disclosure requirements, which you've read about above, but I think the issue is an ethical one. As an agent, you have a duty to disclose all "material facts" known about a property. Obviously this is a material fact. Why are some people so shady that they would try to cover such a fact up? There may be buyers or renters who will not mind and there will be many people who do mind. Everyone should be able to make an informed decision.

On a related issue, if people live in old homes, they can assume someone has probably died there at some time.

Regarding the issue of "stigmatized property," it appears that some states are saying that it is "unfair" to stigmatize the property by disclosing . . . when in reality, it IS stigmatized, but the buyers just don't get to know it. In some cultures this would be extremely important information to know. I personally want to know anything relevant about a property and I think a murder is plenty relevant (this gets into the realm of personal spiritual beliefs, Feng Shui issues, etc.)

I unfortunately (?) don't understand the stigmatization part.

I can imagine that someone may have died on the ground of my house 100 years ago....200 years ago.... No big deal to me regarding whether I want the property or not. (I'm so confused about the time-frame part....3 years, 5 years.......ok, it's 22 years...that's ok.......)

I'm rather fascinated that some people have an aversion to whether someone died 'in the house' as opposed to say.... some one kept little girls or little boys....in the basement there... but no one died.

Just shows how diverse each of us are regarding what's important about a physical structure....and its past owners...etc.

If you are an agent, aware of any material fact, you have to disclose it, according to my understanding.

But do you search for it? Or just go by what the owners tell you - regardless of proof, time-frame, etc.?

JUN

2007

I would just pass it along as I heard it and then the buyers can do their due dilgence to find out details.

NOV

2007

I have a property that I am selling from the Bank I spoke with the seller while they were vacating the property. 4 months later I get a call from a realtor who places an offer on the property and states you know you probably are wondering why your listing hasn't sold and that is because there was a murder-suicide in the home". I tell her I was never aware of it and she says she knows because she sold the exact home I am selling two years ago. How do I find out if this is true? She sent me an article about the crime but nowhere does it disclose the address.

I am in Southern California

There are a few options. If you know the names of the previous owners, based on the story, search the obits at the paper, it should not be hard to determine where they lived. In this county you could, also, just check the assessor page and see if the people are listed as owners -- unless they were renters. Otherwise, the information is public record. The newspaper might not give addresses but if you took the article, your listing info, etc, to the local law enforcement they would be able to tell you if a murder took place. You might even get info just by doing some detailed google and yahoo searches on the names. Then, of course, you could just go knock on a neighbors door, someone who has been there a long time, and casually ask if they can tell you anything about the history of the house, without being too suggestive.