Disclosures on a fixer: lead, mold, radon and what you must say in California

Most California sales of a house or small residential building come with a form called the Transfer Disclosure Statement. There are exemptions, probate and foreclosure sales among them, and the DRE page linked below lists them. The form asks whether you're aware of anything wrong with the house and then lists most of the things that could be.

The mistake I see most is the seller who says "but I'm selling as-is." As-is in California means the buyer takes the house in its current condition and you are not going to repair anything. It has never meant you can skip the form. As-is is about the repair list, not about what you remember.

The Transfer Disclosure Statement

The TDS is a state form. The California Department of Real Estate's consumer pages explain who has to give it and when. Your agent will also hand you a longer seller questionnaire. Answer both the same way, from the same set of notes, because inconsistent answers are exactly what a plaintiff's lawyer reads out loud in a deposition.

The standard is "are you aware." If you knew about it, it goes on the form, with a date and what was done about it.

Lead: anything built before 1978

If the house predates 1978, federal law makes you disclose any known lead-based paint, hand over whatever reports you have, give the buyer the EPA pamphlet and allow a window for a lead inspection if the buyer wants one. The EPA's page on lead in the home has the pamphlet and the list of places lead hides: window sashes, painted trim, old porches, the soil under the drip line.

Almost every 1950s ranch in San Jose has lead somewhere. Check the box and let the buyer decide how much they care. A buyer with a toddler will care. Somebody gutting the place to the studs mostly won't, though their lender might.

Water and mold

This is the part I actually know. Water in a crawl space leaves a record. A tide line on the stem wall, white mineral bloom on the concrete, dark joists, a sump somebody put in and never mentioned. A buyer's inspector will find it.

Disclose every water event you know about, with dates. Roof leaks. A slab leak on an Eichler radiant line. The winter the crawl space filled up. Say what was done about each one. If there was visible mold and you had it cleaned, say so and attach the invoice. If you painted over a stain, say that too; the stain that comes back is the one buyers sue over.

The EPA's mold pages are what I hand people who ask "how bad is bad." Disclose the water and you have mostly disclosed the mold.

Radon in Santa Clara County

Radon comes up out of the ground, and the EPA's radon page maps the country by expected indoor levels. Santa Clara County is not the part of the country people lose sleep over, but low isn't zero. California doesn't make you test. It makes you disclose a test if you did one.

My advice: if you've never tested, say so and move on. If you tested and the number came in above the EPA's action level, disclose the number and whatever mitigation you did.

The natural hazard disclosure

This is a separate statement, usually put together by a third-party company. Flood zones, fire hazard severity zones, dam inundation areas, earthquake fault zones and seismic hazard zones. You don't write it. You do sign it, and you're responsible for not contradicting it in the listing.

The ones people forget

Deaths on the property. California requires you to disclose a death on the property within the past three years, and to answer honestly if a buyer asks about an older one. The one I remember was on a cul-de-sac off Camden. The death was the previous owner's mother, four years back, so it was legally fine, and then a neighbor brought it up at the fence in the last week and the buyer walked anyway.

Neighborhood nuisances. The dog that barks all night, the neighbor running a body shop out of his driveway, the freeway you stopped hearing. If it would change a reasonable buyer's mind, it goes on the form.

Permit history. Any work you know was done without a permit, any addition or conversion, any letter from the city. And any defect you know about that hasn't been fixed: the sagging girder, the settled porch, the cracked slab under the hall closet. You're not required to go looking, but anything you already know goes on the form, including the stuff you wish you didn't know.

What happens when a seller stays quiet

The buyer moves in. The first big rain comes, the crawl space fills, and the buyer's inspector finds a sump pump with a 2011 receipt. Now there's a paper trail showing you knew. The buyer can sue for the cost of the repair and sometimes try to unwind the sale. The California Association of Realtors keeps legal resources on exactly these disputes, and the pattern doesn't change much. The seller who disclosed and took a slightly lower price is fine. The seller who stayed quiet is in a courtroom on First Street two years later paying for both sides' lawyers.

Silence has never come out cheaper for anyone I dealt with. Usually it came out a lot worse.

Cash buyers still need the truth

People assume a cash buyer with a short inspection window doesn't need the disclosures. That is wrong on the law and wrong in practice, because a Bay Area buyer who takes fixers as-is is pricing the house on what you tell them plus whatever a fast walk-through turns up. There's no lender's appraiser, so your disclosure carries more weight, not less. Tell them about the crawl space and they price it in. Hide it and you've got the same lawsuit with a different plaintiff. If anything on your pad involves a death or a lawsuit, pay a real estate lawyer for an hour before you sign; this is general information from a contractor's office manager, not legal advice.

The checklist I hand people

Sit at the kitchen table with a legal pad and go room by room, then under the house, then up on the roof. For each item write the year, what happened, what was done and who did it. Pull your permit file from the city. Dig out every contractor invoice since you bought the place. List every year the crawl space or the garage got wet. Write down any death, any city letter, any dispute with a neighbor. Then fill in the form from the pad, not from memory.

If there's more history on that pad than you want to write down and no appetite left to fix any of it, my advice is to disclose the whole pad and sell it once, with one closing date, no repair list, to someone who has read the pad and made an offer anyway. And put the sump on the pad. People always forget the sump.