What to Disclose When Selling a House: Federal and State Requirements

Disclosure failures are the primary source of post-closing lawsuits against home sellers. Most sellers who end up in litigation didn't set out to deceive the buyer — they simply didn't know what they were required to disclose, or they hoped that a problem they knew about would go undetected.

Neither is a legal defense.

Here's what you must disclose, organized from federal requirements (which apply everywhere) to state-specific forms (which vary significantly).

Federal Disclosure: Lead-Based Paint

This is the one federal requirement that applies to every residential sale of a home built before 1978, regardless of your state's disclosure laws.

Under 42 U.S.C. §4852d, sellers of pre-1978 homes must:

1. Provide the EPA pamphlet "Protect Your Family From Lead In Your Home" to the buyer before the purchase agreement is signed
2. Disclose any known lead-based paint hazards in the property, including any evaluation reports, remediation records, or contractor findings you possess
3. Give the buyer a 10-day inspection period to conduct their own lead paint risk assessment

The 10-day window can be shortened, lengthened, or waived entirely by mutual written agreement. But you must offer it.

The purchase agreement for a pre-1978 home must include a specific Lead Warning Statement that the buyer signs, acknowledging the health risks — particularly to pregnant women and children under six.

If you don't know whether your home contains lead paint, you're not required to test for it before selling. You are required to disclose what you know. "No known lead-based paint hazards" is a valid disclosure. "I repainted over the flaking lead paint last month" is not a disclosure that protects you — it's evidence of concealment.

State Disclosure Requirements

Every state beyond the federal baseline has its own disclosure requirements. The US broadly divides into two regulatory philosophies:

"Caveat Emptor" States (Buyer Beware)

In a handful of states, the default legal posture places more responsibility on buyers to discover defects through inspections and due diligence. This doesn't mean sellers can conceal known problems — active fraud is illegal everywhere. But these states impose fewer mandatory disclosure forms.

Caveat emptor states (or states with limited mandatory disclosure requirements) include: Alabama, Arkansas, West Virginia, Wyoming, and a few others. Even here, environmental hazards like lead paint and asbestos must be disclosed under federal and state environmental law.

Proactive Disclosure States (The Majority)

Most states require sellers to complete a detailed, multi-page statutory disclosure form before accepting an offer. These forms cover:

Structural and physical condition:

• Foundation settling, cracking, or movement
• Roof condition and known leaks
• Water intrusion in basement, crawlspace, or attic
• Termite or pest infestation history
• Any known structural defects

Systems and components:

• HVAC system age and known defects
• Electrical panel issues (Federal Pacific or Zinsco panels, aluminum wiring, knob-and-tube)
• Plumbing issues (galvanized pipes, active leaks, low water pressure)
• Septic system status (if applicable)

Water and environmental:

• History of mold or moisture intrusion
• Any remediation work performed
• Underground storage tanks (especially for pre-1990 properties)
• Proximity to flood zones or history of flooding
• Well water condition (if applicable)

Legal and neighborhood:

• Outstanding liens on the property
• Unpermitted additions or alterations
• Easements, boundary disputes, or encroachments
• HOA status, dues, pending special assessments, and any HOA violations
• Noise or nuisance issues (adjacent commercial property, flight paths, train lines)
• Any pending litigation affecting the property

State-specific requirements add layers beyond these general categories:

• California: Requires the Transfer Disclosure Statement (TDS) plus a Natural Hazard Disclosure (NHD) report indicating flood, fire, earthquake, and fault zone status
• Wisconsin: Mandates disclosure under Chapter 709 covering agricultural use-value assessments and shoreland zoning compliance
• Alaska: Uses a 13-page form covering permafrost stability, avalanche zones, and historical utility costs
• Massachusetts: Requires specific lead paint notification before any purchase agreement can be signed (more stringent than federal baseline)

The Difference Between Non-Disclosure and Fraud

This distinction is the most important one in disclosure law.

Innocent non-disclosure is when you genuinely don't know about a defect. A hairline crack in the foundation behind finished drywall that you've never seen is a defect you can't disclose. Courts recognize that sellers aren't required to know about latent defects they had no reason to discover. Disclosure forms typically ask sellers to complete them to the best of their "actual knowledge."

Fraudulent misrepresentation is when you know about a defect and either actively conceal it or explicitly lie about it on the disclosure form. Examples:

• Painting over an active ceiling leak before listing and checking "No" on the water intrusion question
• Disclosing that you're unaware of any pest issues when you have exterminator invoices from six months ago
• Failing to disclose a neighbor's boundary dispute that you received a formal legal notice about

If fraudulent misrepresentation is proven after closing, the consequences are severe: the buyer can sue for rescission (forcing you to buy the house back), compensatory damages covering repair costs, and punitive damages in some jurisdictions. There is no statute of limitations clock you can run out on fraud.

How to Fill Out a Seller Disclosure Form

Obtain the current form from your state real estate commission website. Forms are updated periodically and must reflect current state law — don't use a form from a prior transaction or one downloaded from an unofficial source.

Answer every question based on actual knowledge, not assumptions. If a question asks whether you're aware of any roof leaks and the roof was replaced 5 years ago with no issues since, the answer is no. If you had a slow drip last winter that you fixed, the answer is yes — note the repair and when it was done.

Document your repairs. If you've had issues repaired by licensed contractors, having receipts and completion reports is evidence of responsible ownership, not a reason to hide the history. Courts view a seller who discloses an issue and shows a completed repair very differently from a seller who concealed the issue.

Have a real estate attorney review the completed form before it goes to the buyer. An attorney can identify questions that are ambiguous, sections where your knowledge may inadvertently expose you, and any state-specific requirements you may have missed.

Disclosure requirements exist to protect buyers — but they also protect sellers who follow them correctly. A fully documented, accurately completed disclosure package shifts post-sale liability risk significantly. An incomplete one doesn't.

The FSBO Complete Guide includes a disclosure reference guide organized by state, a checklist of the 15 most commonly missed disclosure categories, and guidance on how to disclose known issues without tanking your sale.