Question:
I am acting for an Estate concerning the sale of a property. The individual passed away due to natural causes. Does this need to be disclosed, and what if the Buyer’s agent were to ask me specifically?
How I am to respond to an agent who asks if the owner died in the home.
I thought that I do not need to disclose that in the listing, but I owe honesty to the agent who asks and let the agent know that the seller did pass away (heart attack) in the home.
I don’t want to disclose something to the agent if my clients (executors) have not given permission to disclose, but I also don’t want to lie to the buyer agent.
Answer:
First of all, you don’t have to disclose anything at all about a natural death which may have occurred on the property.
Second, you have to follow your client’s instructions. So, if your client doesn’t want to have this news shared, then, that’s the end of it.
However, it is possible that the information is “out there” in some way:
- All the neighbours know, and/or
- The death notice in the newspaper said “…peacefully at home…”.
So, in both those situations, best to let the buyer know in advance. Get the confirmation from your client.
When we consider the issue of the disclosure of material facts, an agent must disclose such facts to their own client. This means that if you knew, you would have to tell the Sellers (the Executors), but, they already knew, they told you. It’s certainly no surprise.
There are some groups who might be a little more anxious about this information than others. The Chinese community has greater concerns, particularly among the elderly. They ask their own agent to find out.
In this situation, you are confronted with a dilemma, if they should ask you directly. Here, you have three choices:
- Tell the truth,
- Tell a lie, and
- Be evasive.
You will have to obtain specific instructions from your client if they are going to reverse their position and now permit you to anwer the question truthfully.
Choice #2, really isn’t a choice. It’s wrong both ethically and legally. Don’t tell a lie.
Your actual “go to” response could be simple evasion of the question:
“thank you very much for your question, but my client has not provided me with instructions to respond”.
There’s nothing wrong with that. You cannot tell a lie, but there is no obligation to volunteer the answer, if you have a fiduciary duty to your own client to maintain confidentiality.
Just make sure that whatever evasive response you provide, it cannot be interpreted as “no one died here”.
Brian Madigan LL.B., Broker