The wrong way to disclose the existence of a Pet Cemetery - Broker’s Duty to Disclose Material Facts

A buyer recently went under contract to purchase a house on a wooded lot in a rural community. During the due diligence period, they discovered that there was a large animal cemetery on the property with a substantial number of unmarked graves.

The buyer was uncomfortable with the situation and chose to terminate.

The listing agent was notified that the cemetery should have been disclosed and that the buyer was entitled to a refund of their due diligence fee.

The listing agent said that the cemetery had been disclosed, because it had been marked on the septic permit that had been attached to his MLS Listing as an exhibit.

Is that type of disclosure considered adequate?

No, it is definitely not.

The Real Estate Commission has suggested several possible options for where a listing broker’s required disclosure should take place. One of those options is in the remarks section of their MLS listing. It is recommended that listing agents disclose material facts in the public remarks section in order to ensure that their disclosure reaches the widest possible audience.

Having the disclosure as markings on a septic permit seems to have been designed to do the exact opposite.

The presence of a substantial number of unmarked graves on a residential property is a fact that most buyers would consider material, and the listing agent clearly chose not to mention it in either the public remarks or the agent remarks sections of his listing.

It should be noted that regardless of what a seller chooses to reveal on the Residential Property Disclosure, a broker should take reasonable steps to disclose material facts about the subject property which the broker knows or reasonably should know and shall not rely on the owner’s representations.”

The key words are “reasonable steps.” The listing agent in the transaction did not take reasonable steps to disclose a material fact.

That failure would give the buyer a strong legal argument in the event they decide to pursue a legal claim for the recovery of their due diligence fee.