The SCR230 Residential Property Condition Disclosure Statement RPCDS can be a REALTORS® best risk management strategy.
For risk management reasons, brokerages can always attempt to get the SCR230 into the transaction via the listing agreement and via the purchase agreement so that the SCR230 is used in transactions.
Recently this hypothetical was presented to SCR:
A fifth story condominium was undamaged by recent flooding events, but the lower level of the condo complex experienced flooding and was damaged and was repaired from condo money and insurance money.
The SC Horizontal Property Act defines the condo unit owner as owning their condo unit’s space and sharing in the ownership of the condo’s common elements which include the condo’s land and exterior and other common elements.
WARNING: Many condo unit sellers might not be fully aware that the seller disclosure form is asking about both their unit condo space and the condo’s common elements since the condo unit owner has ownership interests in both. So, condo sellers are reminded of their broad condo ownership interests. Additionally, buyers may want to inquire about common area issues as a way to pick up issues that occurred prior to the seller’s ownership or the seller innocently failed to disclose. False or misleading statements on the seller disclosure can get the seller sued for damages and attorney fees. Listing brokerages who have actual knowledge of false/misleading seller statements on the seller disclosure can also be sued as well as face both ethics and license law complaints and damage to their business reputation.
Flooding issues have occurred in SC due to storms over the past years. Flood issues are potentially high dollar lawsuits due to potential structural issues, the water created mold, mold related health, environmental contamination, assessments, and future flood issues.
Obviously, flood issues recede. So a seller’s lawyer defensive arguments that the property is not currently flooded so no disclosure is required is unlikely to prevail in litigation.
Arguably the SC RPCDS from LLR (aka SCR230) asks about condo flood issues both for the condo unit and the condo’s common elements:
Questions that can apply to this hypothetical are below (wording is abbreviated)(problems include present defects, malfunctions, damages, conditions, and characteristics):
#19 Structural change to the property during your ownership.
#20 Water problems on the property during your ownership.
#21 Drainage issues.
#23 Flood hazards.
#24 Flood insurance.
#25 FEMA claims.
X. Explain "yes" answers.
#1 Common expenses.
#3 Special assessments.
#9 Common area problems.
As always, contact the SCR hotline for questions:
Posted by: Byron King on 3/5/20 (This information is only accurate as of 3/5/20. You must contact SCR for updates and changes to this information after 3/5/20 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org)