Some Tips on the Residential Real Property Disclosure Act January 2012
Tell all Sellers to fill out the form. If no Form is given to the Buyer, the Buyer has the right to cancel the
contract at any time, even up to the closing, and the Seller can be held strictly liable for damages to the
property. It is so simple to fill it out- Never lived in the property, have no knowledge of these conditions or
defects.
The Act lists some situations in which the act does not apply. However, often the trustee or executor was
a family member or friend of the owner or decedent. The Buyer could argue (and has won in some court
cases) that the executor had knowledge of defects. The family member may have lived in the house.
The family members or friends, even if they did not live in the house, were in contact with the Owner,
whether in phone calls, emails, texts, or letters. The Owner may very well have said something along
the lines of, “What a thunderstorm we had last week. It took hours to bail out the basement.”
The executor or trustee probably had some management responsibility or delegated the management
while the property was on the market – that could make them a Seller under the definitions of the act
Even if the property is being sold “AS IS,” the Seller still absolutely has a duty to disclosure any
knowledge of material defects. However, the Seller has no duty to investigate.
What if the Seller says, “I had a problem, but I fixed it.” DISCLOSE IT with details about the repair. It puts
the Buyer on notice to carefully check out that issue. Even better, give the Buyer copies of the repair
receipts. That way when the basement does flood again, the Seller can show he/she was totally
honest. Without the disclosure, the statement, “But I thought I fixed it,” comes across as very self-serving
and may not be enough of a defense.
For the Buyer- they still need to prove the Seller KNEW about the problem and did not disclose it. Good
sources- neighbors, prior owners, prior repairmen and contractors, and prior homeowners’ insurance
claims. Even with proof, lawsuits are expensive. It may be cheaper to absorb the cost unless the
repairs are very costly.
This very helpful information was from a January 11, 2012 Illinois Real Estate Lawyers Association
meeting (IREALA), given by two attorneys:
Steven Fritzshall and Brad Pawlowski
6584 N. Northwest Highway, Chicago IL 60631
Phone 773-763-4400, fax 773-763-2805
Steve@go2court.com & Brad@go2court.com
They handle many of these types of cases for both Buyers and Sellers. If your client is caught up in this
kind of problem, you may want to suggest calling these lawyers.
If any of your clients request a recommendation for an attorney, I'd be delighted if you would mention my
name. My practice is concentrated in residential real estate and I've been in private practice since 1983.
I'm a member of the Illinois Real Estate Lawyers Association (IREALA).
I provide reasonably priced, thorough, and complete services to people buying or selling a home. My fee
is $400 per transaction, for either a buyer or a seller. My practice is small enough to provide
personalized service to each client. I enjoy working with first-time buyers, answering their questions to
make them feel more comfortable with their purchase.
If I can provide more information or be of further assistance, please call me.
Yours truly,
Randy S. Heidenfelder
Attorney at Law
480 Surryse Road
Lake Zurich, IL 60047
Office: 847-438-0754
Fax: 847-346-1375
HeidenLaw@me.com
Tell all Sellers to fill out the form. If no Form is given to the Buyer, the Buyer has the right to cancel the
contract at any time, even up to the closing, and the Seller can be held strictly liable for damages to the
property. It is so simple to fill it out- Never lived in the property, have no knowledge of these conditions or
defects.
The Act lists some situations in which the act does not apply. However, often the trustee or executor was
a family member or friend of the owner or decedent. The Buyer could argue (and has won in some court
cases) that the executor had knowledge of defects. The family member may have lived in the house.
The family members or friends, even if they did not live in the house, were in contact with the Owner,
whether in phone calls, emails, texts, or letters. The Owner may very well have said something along
the lines of, “What a thunderstorm we had last week. It took hours to bail out the basement.”
The executor or trustee probably had some management responsibility or delegated the management
while the property was on the market – that could make them a Seller under the definitions of the act
Even if the property is being sold “AS IS,” the Seller still absolutely has a duty to disclosure any
knowledge of material defects. However, the Seller has no duty to investigate.
What if the Seller says, “I had a problem, but I fixed it.” DISCLOSE IT with details about the repair. It puts
the Buyer on notice to carefully check out that issue. Even better, give the Buyer copies of the repair
receipts. That way when the basement does flood again, the Seller can show he/she was totally
honest. Without the disclosure, the statement, “But I thought I fixed it,” comes across as very self-serving
and may not be enough of a defense.
For the Buyer- they still need to prove the Seller KNEW about the problem and did not disclose it. Good
sources- neighbors, prior owners, prior repairmen and contractors, and prior homeowners’ insurance
claims. Even with proof, lawsuits are expensive. It may be cheaper to absorb the cost unless the
repairs are very costly.
This very helpful information was from a January 11, 2012 Illinois Real Estate Lawyers Association
meeting (IREALA), given by two attorneys:
Steven Fritzshall and Brad Pawlowski
6584 N. Northwest Highway, Chicago IL 60631
Phone 773-763-4400, fax 773-763-2805
Steve@go2court.com & Brad@go2court.com
They handle many of these types of cases for both Buyers and Sellers. If your client is caught up in this
kind of problem, you may want to suggest calling these lawyers.
If any of your clients request a recommendation for an attorney, I'd be delighted if you would mention my
name. My practice is concentrated in residential real estate and I've been in private practice since 1983.
I'm a member of the Illinois Real Estate Lawyers Association (IREALA).
I provide reasonably priced, thorough, and complete services to people buying or selling a home. My fee
is $400 per transaction, for either a buyer or a seller. My practice is small enough to provide
personalized service to each client. I enjoy working with first-time buyers, answering their questions to
make them feel more comfortable with their purchase.
If I can provide more information or be of further assistance, please call me.
Yours truly,
Randy S. Heidenfelder
Attorney at Law
480 Surryse Road
Lake Zurich, IL 60047
Office: 847-438-0754
Fax: 847-346-1375
HeidenLaw@me.com
It's important to utilize
legal representation in a
Real Estate transaction.
Please consult your legal
advisor as soon as you
have a signed real estate
contract.
Chris Bowman
legal representation in a
Real Estate transaction.
Please consult your legal
advisor as soon as you
have a signed real estate
contract.
Chris Bowman
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Timeless Tips from Real Estate Attorneys
Letter reprinted with permission from
Randy Heidenfelder
Randy Heidenfelder
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