The Dry Basement That Isn't
Margaret lists a 1962 split-level home. On the New Hampshire seller property disclosure form, she checks "no" to known water problems. At the listing appointment she tells licensee Tom that the basement seeps after heavy rain, that she installed a sump pump, and that a French drain was added in 2019. She says, "Don't put that on the form; buyers freak out, and it's fixed anyway." Tom knows the form asks about water intrusion and drainage. A cash buyer, Mr. Lee, waives inspection and submits a full-price offer of $365,000. Tom has not corrected the form.
1. What are Tom's obligations under New Hampshire license law and the seller property disclosure law?
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Tom must not make a false statement or conceal a material fact. The seller property disclosure form is a statutory disclosure for residential property, and the seller must answer accurately about known water intrusion and drainage. Tom knows the "no" answer is wrong. He should advise Margaret to amend the form and disclose the seepage, sump pump, and French drain. Tom cannot simply accept the inaccurate form because that would participate in a misrepresentation.
2. Mr. Lee waives inspection. Does that eliminate Tom's duty?
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No. A buyer's waiver of inspection may affect the buyer's own risk allocation, but it does not waive the seller's disclosure obligation or the licensee's duty not to misrepresent or conceal material facts. Tom still knows of a material defect that is inconsistent with the disclosure form. The waiver may be evidence the buyer accepted the property "as is," but it does not authorize a false disclosure.
3. If Margaret refuses to amend the disclosure, what should Tom do?
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Tom should not deliver or support the false form. He should document his advice to Margaret. If she still refuses, Tom should disclose the known water problem to the buyer with Margaret's knowledge or withdraw from the listing. He should not wait until closing or rely on the buyer's inspection waiver. Because the question involves the seller's legal obligations, Tom should also recommend that Margaret consult her attorney.