HB0264 - Property Condition Disclosure Act.
|
2001 |
State of Wyoming |
01LSO-0593 |
HOUSE BILL NO. HB0264
Property Condition Disclosure Act.
Sponsored by: Representative(s) Willford
A BILL
for
1 AN ACT relating to real
property and real estate agents;
2
providing definitions; providing for disclosure of property
3 conditions
by the seller to the buyer; providing for
4
conditions; providing for penalties; providing for civil
5
actions; providing for exceptions; and providing for an
6
effective date.
7
8 Be It Enacted by the Legislature of the State of Wyoming:
9
10 Section 1. W.S. 34-26-101 through 34-26-108 are
11 created to read:
12
13 CHAPTER 26
14 PROPERTY CONDITION DISCLOSURE ACT
15
16 34-26-101. Short title.
17
Page 1
1 This act shall be known
and may be cited as the "Property
2
Condition Disclosure Act."
3
4 34-26-102. Definitions.
5
6 (a) As used in this act:
7
8 (i) "Contract"
means a real estate purchase
9
contract for the sale, conveyance or exchange of property,
10 option to purchase property or a lease with
an option to
11 purchase property;
12
13 (ii) "Defect"
means a condition, malfunction or
14 problem that would have a materially adverse
effect on the
15 monetary value of the property or that would
impair the
16 health or safety of future occupants of the
property;
17
18 (iii) "Disclaimer
statement" means the statement
19 described in W.S. 34-26-103(a)(i);
20
21 (iv) "Disclosure"
means a written declaration
22 required by this act based on actual
knowledge of the
23 seller regarding certain physical conditions
of the
Page 2
1
property. A disclosure for purposes of this act is not a
2
warranty, implied or express, of any kind;
3
4 (v) "Disclosure
statement" means the statement
5
described in W.S. 34-26-103(a)(ii);
6
7 (vi) "Offer
to purchase" means an offer to
8
purchase property made by a purchaser pursuant to a written
9
contract;
10
11 (vii) "Person"
means an individual, corporation,
12 limited liability company, partnership,
association, trust,
13 other legal entity or any combination
thereof;
14
15 (viii) "Property" means real property;
16
17 (ix) "Purchaser"
means a person who is
18 attempting to acquire a possessory interest
in property;
19
20 (x) "Real
estate licensee" means a person
21 licensed under the Real Estate License Code;
22
Page 3
1 (xi) "Seller"
means a person who is attempting
2 to
transfer a possessory interest in property and who is
3
either:
4
5 (A) Represented
by a real estate licensee;
6 or
7
8 (B) Not
represented by a real estate
9
licensee but receives a written request from the purchaser
10 to deliver or cause to be delivered a
disclaimer statement
11 or disclosure statement as the terms are
defined in
12 subsections (iii) and (v) of this section.
13
14 (xii) "Transfer"
means a sale, conveyance,
15 exchange or option to purchase by written
instrument of a
16 possessory interest in property for
consideration; and
17
18 (xiii) "This
act" means W.S. 34-26-101 through
19 34-26-108.
20
21 34-26-103. Disclaimer or disclosure statement.
22
Page 4
1 (a) A seller of
property located in this state shall
2
deliver or cause to be delivered, to the purchaser of the
3
property one (1) of the following:
4
5 (i) A written
property disclaimer statement on a
6
form established by rule by the Wyoming real estate
7
commission which states that the seller:
8
9 (A) Has never
occupied the property and
10 makes no disclosures concerning the
condition of the
11 property; and
12
13 (B) Has no
actual knowledge of any defect;
14 or
15
16 (ii) A written
property condition disclosure
17 statement on a form established by rule by
the Wyoming real
18 estate commission which shall include the
information set
19 forth in subsection (b) of this section.
20
21 (b) The
disclosure statement shall include an
22 identification of items and improvements
which are included
23 in the sale of the property and whether the
items or
24 improvements are in normal working order.
The disclosures
Page 5
1
required shall also include a statement of whether the
2
seller has actual knowledge of defects or information in
3
relation to the following:
4
5 (i) Water and
sewer systems, including the
6
source of household water, water treatment systems,
7
sprinkler systems, occurrence of water in the heating and
8 air
conditioning ducts, water seepage or leakage, drainage
9 or
grading problems and flood zone status;
10
11 (ii) Structural
systems, including the roof,
12 walls, floors, foundation and any basement;
13
14 (iii) Plumbing,
electrical, heating and air
15 conditioning systems;
16
17 (iv) Infestation
or damage of wood-destroying
18 organisms;
19
20 (v) Major fire, hail or tornado damage;
21
22 (vi) Land use matters;
23
Page 6
1 (vii) Existence
of hazardous or regulated
2
materials and other conditions having an environmental
3
impact;
4
5 (viii) Any other
defects known to the seller;
6 and
7
8 (ix) Other
matters the Wyoming real estate
9
commission deems appropriate.
10
11 (c) The
disclosure statement shall include the
12 following notices to the purchaser in bold
and conspicuous
13 type:
14
15 (i) "The
information and statements contained in
16 this disclosure statement are declarations
and
17 representations of the seller and are not
the
18 representations of the real estate
licensee.";
19
20 (ii) "The
information contained in this
21 disclosure statement is not intended to be a
part of any
22 contract between the purchaser and the
seller."; and
23
Page 7
1 (iii) "The
declarations and information
2
contained in this disclosure statement are not warranties,
3 express
or implied of any kind, and are not a substitute
4 for
any inspections or warranties the purchaser may wish to
5
obtain."
6
7 (d) Either the
disclaimer statement or the disclosure
8
statement required by this section shall be completed,
9
signed and dated by the seller. The date of completion on
10 either statement may not be more than one
hundred eighty
11 (180) days prior to the date of receipt of
the statement by
12 the purchaser.
13
14 (e) The Wyoming
real estate commission shall
15 prescribe by rule the forms for the
residential property
16 condition disclaimer and the residential
property condition
17 disclosure statement. The forms shall be
made available
18 upon request regardless of whether the
person requesting a
19 disclaimer or disclosure form is represented
by a real
20 estate licensee.
21
22 34-26-104. Delivery of disclaimer or
disclosure
23 statement.
24
Page 8
1 (a) A seller
shall deliver either the disclaimer
2
statement or disclosure statement to the purchaser before
3
acceptance of an offer to purchase.
4
5 (b) If the
disclaimer statement or disclosure
6
statement is delivered to the purchaser after an offer to
7
purchase has been made, the offer to purchase is not
8 binding
until after the purchaser has acknowledged receipt
9 of
the disclaimer statement or disclosure statement and
10 confirmed the offer to purchase.
11
12 (c) If the
seller becomes aware of a defect after
13 delivery to the purchaser of either a
disclaimer statement
14 or a disclosure statement, the seller shall
promptly
15 deliver to the purchaser either another
disclosure
16 statement or an amended disclosure statement
which
17 discloses the newly discovered defect. The
disclosure
18 statement or any amendment shall be in
writing and shall be
19 signed and dated by the seller. However, if the required
20 document is delivered to the purchaser after
an offer to
21 purchase has been made, the offer to
purchase is not
22 binding until after the purchaser has
acknowledged receipt
23 of the required document and confirmed the
offer to
24 purchase.
Page 9
1
2 (d) The
purchaser shall acknowledge in writing
3
receipt of the disclaimer statement or the disclosure
4 statement
and any amendment to the disclosure statement.
5 The
purchaser shall sign and date any acknowledgment. The
6
acknowledgment shall accompany the offer to purchase the
7
property. If the purchaser confirms the offer to purchase,
8 the
confirmation shall be in writing, signed and dated by
9 the
purchaser and promptly delivered to the seller.
10
11 34-26-105. Seller liability.
12
13 (a) The seller
shall not be liable for a defect or
14 other condition in the property if the existence
of the
15 defect or other condition in the property
was disclosed in
16 the disclosure statement or any amendment
delivered to the
17 purchaser before acceptance of the offer to
purchase.
18
19 (b) The
seller shall not be liable for any erroneous,
20 inaccurate or omitted information
supplied to the purchaser
21 as a disclosure required by this act
if:
22
Page 10
1 (i) The error,
inaccuracy or omission results
2
from an approximation of information by the seller,
3
provided:
4
5 (A) Accurate
information was unknown to the
6
seller at the time the disclosure was made;
7
8 (B) The
approximation was clearly
9
identified as such and was reasonable and based on the best
10 information available to the seller; and
11
12 (C) The
approximation was not used to
13 circumvent the disclosure requirements of
this act.
14
15 (ii) The error,
inaccuracy or omission was not
16 within the actual knowledge of the seller;
17
18 (iii) The
disclosure was based on information
19 provided by public agencies and the seller
reasonably
20 believed the information to be correct.
21
22 34-26-106. Real estate licensee responsibilities.
23
Page 11
1 (a) A real
estate licensee representing a seller has
2 the
duty to obtain from the seller a disclaimer statement
3 or
a disclosure statement and any amendment required by
4
this act and to make the statement available to potential
5 purchasers
prior to acceptance of an offer to purchase.
6
7 (b) A real
estate licensee representing or assisting
8 a
purchaser shall obtain and make available to the
9
purchaser a disclaimer statement or a disclosure statement
10 and any amendment required by this act prior
to the
11 acceptance of an offer to purchase.
12
13 (c) A real
estate licensee shall disclose to the
14 purchaser any defects in the property
actually known to the
15 licensee which are not included in the
disclosure statement
16 or any amendment.
17
18 (d) A real
estate licensee who has complied with the
19 requirements of subsections (a), (b) and (c)
of this
20 section, as applicable, shall have no
further duties to the
21 seller or the purchaser regarding any
disclosures required
22 under this act.
23
Page 12
1 (e) A real
estate licensee who has not complied with
2 the
requirements of subsections (a), (b) and (c) of this
3
section shall be subject to disciplinary action by the
4
Wyoming real estate commission as set forth in W.S.
5 33-28-112.
6
7 (f) A real
estate licensee has no duty to the seller
8 or
the purchaser to conduct an independent inspection of
9 the
property and has no duty to independently verify the
10 accuracy or completeness of any statement
made by the
11 seller in the disclaimer statement or the
disclosure
12 statement and any amendment.
13
14 34-26-107. Purchaser remedies.
15
16 (a) The
purchaser may recover in a civil action only
17 in the event of any of the following:
18
19 (i) The failure
of the seller to provide to the
20 purchaser a disclaimer statement or a
disclosure statement
21 and any amendment prior to acceptance of an
offer to
22 purchase;
23
Page 13
1 (ii) The failure
of the seller to disclose in
2 the
disclosure statement or any amendment provided to the
3
purchaser a defect which was actually known to the seller
4
prior to acceptance of an offer to purchase; or
5
6 (iii) The failure
of the real estate licensee to
7
disclose to the purchaser any defects in the property
8
actually known to the real estate licensee prior to
9
acceptance of an offer to purchase and which were not
10 included in the disclosure statement or any
amendment
11 provided to the purchaser.
12
13 (b) The sole
and exclusive civil remedy for a failure
14 under subsection (a) of this section by the
seller or the
15 real estate licensee shall be an action for
actual damages,
16 including the cost of repairing the defect,
suffered by the
17 purchaser as a result of a defect existing
in the property
18 as of the date of acceptance by the seller
of an offer to
19 purchase and shall not include the remedy of
exemplary
20 damages.
21
22 (c) Any action
brought under this act shall be
23 commenced within two (2) years after the
date of transfer
24 of real property subject to this act.
Page 14
1
2 (d) In any
civil action brought under this act, the
3
prevailing party shall be allowed court costs and a
4
reasonable attorney fee to be set by the court and to be
5
collected as costs.
6
7 (e) A transfer
of a possessory interest in property
8
subject to this act may not be invalidated solely because
9 of
the failure of any person to comply with this act.
10
11 (f) This act
applies to, regulates and determines
12 rights, duties, obligations and remedies of
the seller, the
13 real estate licensee and the purchaser with
respect to
14 disclosure of defects in property.
15
16 34-26-108. Exemptions.
17
18 (a) This act does not apply to:
19
20 (i) Transfers
pursuant to court order,
21 including, but not limited to, transfers
pursuant to a writ
22 of execution, transfers by eminent domain
and transfers
23 pursuant to an order for partition;
24
Page 15
1 (ii) Transfers
to a mortgagee by a mortgagor or
2
successor in interest who is in default, transfers by any
3
foreclosure sale after default in an obligation secured by
4 a
mortgage, transfers by a mortgagee's sale under a power
5 of
sale after default in an obligation secured by any
6
instrument containing a power of sale, transfers by a
7
mortgagee who has acquired the real property at a sale
8
conducted pursuant to a power of sale, a sale pursuant to a
9
decree of foreclosure or has acquired the real property by
10 deed in lieu of foreclosure;
11
12 (iii) Transfers
by a fiduciary who is not an
13 owner occupant of the subject property in
the course of the
14 administration of a decedent's estate,
guardianship,
15 conservatorship or trust;
16
17 (iv) Transfers
from one (1) coowner to another
18 coowner;
19
20 (v) Transfers
made to a spouse, or to the person
21 or persons in the lineal line of
consanguinity of one (1)
22 or more of the owners;
23
Page 16
1 (vi) Transfers
between spouses resulting from a
2
decree of dissolution of marriage or a decree of legal
3
separation or from a property settlement agreement
4
incidental to such a decree;
5
6 (vii) Transfers
made pursuant to mergers and
7
from a subsidiary company to a parent company or the
8
reverse;
9
10 (viii) Transfers
or exchanges to or from any
11 governmental entity; or
12
13 (ix) Transfers of
a newly constructed,
14 previously unoccupied dwelling.
15
16 Section 2. W.S. 33-28-111(a)
by creating a new
17 subsection (xxxiv) is amended to
read:
18
19 33-28-111. Censure
of licensee and suspension or
20 revocation of license; grounds.
21
22 (a) The
commission shall upon a written sworn
23 complaint or may upon its own motion
investigate the
24 actions of any broker, associate broker or
salesman and may
Page 17
1
censure the licensee, suspend or revoke any license issued
2
under this act for any of the following:
3
4 (xxxiv) Failing to comply
with the provisions of
5 W.S. 34-26-106.
6
7 Section 3. This act is effective July 1, 2001.
8
9 (END)
Page 18