Ask an Edina Realty Lawyer: When selling, do I have to disclose if someone died on the property?

Homeownership can be complicated, but we also think it’s one of the most rewarding ventures out there. In our series Ask an Edina Realty Lawyer, we are hoping to demystify some of the trickier aspects of buying, selling and owning a home.

In this edition, one of our lawyers discusses how a home seller can navigate the disclosure process when someone has died in the home.

Dear Edina Realty Legal,

I’m selling my late mother’s house. I've been told that I need to disclose all material facts about the property. My mom passed away in the house. Do I need to disclose that?

First, please accept our sincere condolences for your loss. Losing a parent is difficult enough before you complicate matters with a property sale.

As far as the disclosure issue is concerned, it really depends on the state where the property is located. In both Minnesota and Wisconsin, you generally do not have to disclose to a buyer that a person died in the home.

What is the law on disclosure of deaths?

In Minnesota, a seller is required to disclose to prospective buyers all “material facts” that could adversely and significantly affect an ordinary buyer's use and enjoyment of the property. Now, it’s true that some prospective buyers may be troubled by the fact that a person died in the home.

However, it’s important to know that:

• Minnesota law expressly says a seller need not disclose that a natural death or a death by suicide occurred within the home.
• This law was enacted after sellers were being sued for stigma attached to the property (like the house being haunted), rather than due to physical defects with their property.
  • And, by the way, the Minnesota law also says you don't need to disclose paranormal activity on the property.
• Wisconsin has a somewhat similar law that doesn't explicitly mention disclosure of death, but has the same effect.
• Minnesota law does not provide a disclosure exception when a murder has occurred in the home; sellers must disclose if a murder has taken place on the property.

Additional insights on selling a deceased relative’s home

As a relative of the person who owned the property, preparing a disclosure can be complicated by your limited acquaintance with the property and its flaws. Keep in mind that the seller's disclosure typically asks for information to the best of your knowledge, so you shouldn’t be held liable for failing to disclose what you did not know.

Last, keep in mind that there is an alternative to making a disclosure:

• A buyer can waive the right to receive a seller's disclosure.
• If the buyer waives that right, the seller does not need to disclose material facts about the property.
• Disclosure on a few topics — like the location and status of wells, the details about septic systems, and any history of radon or radon testing — are still required, even if a buyer waives a seller’s disclosure.
• The waiver of a seller's disclosure could be problematic to buyers in some circumstances, but buyers engaging in a home sale by an estate typically understand the reason for a waived disclosure.

Navigating the sale of real estate following the death of a loved one can be difficult. If you need the assistance of a professional who can help you complete this emotional and logistical undertaking, Edina Realty is always here to help.

The Edina Realty legal department serves as in-house counsel for Edina Realty and does not represent private clients. This article is not intended to provide legal advice.