Sometimes sellers wrongly assume they are exempt from furnishing the buyer with a transfer disclosure statement (TDS) because the home is owned by a corporation, LLC, or trust.
The Transfer Disclosure Statement (TDS) is required in the state of California unless the seller (or transferor) meets one of the following conditions:
- Court-ordered sales such as probate sales, foreclosure sales, sale by bankruptcy trustee, eminent domain.
- Transfers in which the property goes back to the bank because the borrower defaulted on the mortgage.
- When the seller is the fiduciary administering a trust*, guardianship, conservatorship or estate.
*A trustee is not exempt if the trustee ever owned the property before it was moved into a trust OR occupied the property in within a year leading up to the sale.
- Sales from one co-owner to co-another
- Sales from one spouse to another or lineal blood-relative.
- Seller is a government entity.
Property held in a trust is commonly misunderstood. Just because the seller is a trust, does not make the trustee exempt from completing a TDS.
Sellers get flustered when they don’t live in the property and have to fill out a Transfer Disclosure Statement. The reason is that they don’t know the answer to many questions and they don’t want to put the wrong information. This is common with landlords or people selling homes they haven’t occupied recently or even ever.
Should sellers that don’t occupy a property fill out a transfer disclosure statement? Yes, unless they are exempt for one of the reasons above, the seller has to by law. Whether the seller occupied is irrelevant.
A seller doesn’t get in trouble for “not knowing.” This means if the seller didn’t know if there was a roof leak and they checked “no,” and the buyer then finds a roof leak, the seller did not misrepresent the condition – at least not intentionally. A seller gets in trouble when they knowingly withheld information from the buyer. If a seller is filling out a Transfer Disclosure Statement and doesn’t know if there is a leak, then the answer should be “no.” The disclosure is asking if the seller knows. It’s less about the property and more about the seller’s knowledge as it relates to the property.
What about the Exempt Seller Disclosure (ESD)?
There is no legal requirement for a truly exempt seller to provide an exempt seller disclosure form. There is no legal requirement for a Seller Property Questionnaire. These forms exist because CAR (The California Association of Realtors) knows that the more the seller the discloses the safer they are. So, even though a seller is exempt. There is a condensed ESD form that is suggested to be used instead of nothing. This offers protection to the buyer and seller.
I think CAR’s heart is in the right place with the exempt seller disclosure. I personally recommend taking it further. I think that any natural person selling a property should just fill out a transfer disclosure statement. The more that is disclosed the better.
The original code for reference.
(a)Sales or transfers that are required to be preceded by the furnishing to a prospective buyer of a copy of a public report pursuant to Section 11018.1 of the Business and Professions Code and transfers that can be made without a public report pursuant to Section 11010.4 of the Business and Professions Code.
(b)Sales or transfers pursuant to court order, including, but not limited to, sales ordered by a probate court in the administration of an estate, sales pursuant to a writ of execution, sales by any foreclosure sale, transfers by a trustee in bankruptcy, sales by eminent domain, and sales resulting from a decree for specific performance.
(c)Sales or transfers to a mortgagee by a mortgagor or successor in interest who is in default, sales to a beneficiary of a deed of trust by a trustor or successor in interest who is in default, any foreclosure sale after default, any foreclosure sale after default in an obligation secured by a mortgage, a sale under a power of sale or any foreclosure sale under a decree of foreclosure after default in an obligation secured by a deed of trust or secured by any other instrument containing a power of sale, sales by a mortgagee or a beneficiary under a deed of trust who has acquired the real property at a sale conducted pursuant to a power of sale under a mortgage or deed of trust or a sale pursuant to a decree of foreclosure or has acquired the real property by a deed in lieu of foreclosure, sales to the legal owner or lienholder of a manufactured home or mobilehome by a registered owner or successor in interest who is in default, or sales by reason of any foreclosure of a security interest in a manufactured home or mobilehome.
(d)Sales or transfers by a fiduciary in the course of the administration of a trust, guardianship, conservatorship, or decedent’s estate. This exemption shall not apply to a sale if the trustee is a natural person who is a trustee of a revocable trust and is a former owner of the property or was an occupant in possession of the property within the preceding year.
(e)Sales or transfers from one co-owner to one or more other coowners.
(f)Sales or transfers made to a spouse, or to a person or persons in the lineal line of consanguinity of one or more of the transferors.
(g)Sales or transfers between spouses resulting from a judgment of dissolution of marriage or of legal separation or from a property settlement agreement incidental to that judgment.
(h)Sales or transfers by the Controller in the course of administering Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the Code of Civil Procedure.
(i)Sales or transfers under Chapter 7 (commencing with Section 3691) or Chapter 8 (commencing with Section 3771) of Part 6 of Division 1 of the Revenue and Taxation Code.
(j)Sales or transfers or exchanges to or from any governmental entity.
(k)Sales or transfers of any portion of a property not constituting single-family residential property.
(l)The sale, creation, or transfer of any lease of any duration with the exception of a lease with an option to purchase or a ground lease coupled with improvements.
