Q. My apartment is on the market, and I recently learned that the building next door is planning to add three more stories and that my apartment will lose two east-facing windows. Do I have to tell prospective buyers?
A. Maybe, and regardless of whether you have to, you probably should, say our experts.
Although New York is still generally a "buyer-beware" state, says real estate lawyer Alan Fried, and "while generally a seller is not obligated to voluntarily disclose negative conditions about a property being sold--other than a few government-required disclosures like lead paint--a seller may not actively conceal a condition or make affirmative misrepresentations."
Replacing your lot-line windows--which are usually pretty obvious, such as marked by chickenwire running through the glass--could be considered active concealment. Also, says Fried, the standard form of contract for sale an apartment contains a number of seller's representations that potentially touch on this disclosure, and your listing agreement with your broker may require you to tell.
Moreover, it's likely that the buyers will find out about your lot-line windows via the due diligence performed by their lawyer.
Many attorneys request a copy of the offering plan, where the existence of lot-line windows are mentioned in the Special Risks section as well as in "numerous" other places throughout the plan, says Fried. The board minutes most likely also contain references to the impending construction next door, prompting an inquiry into the existence of lot line windows.
Overall, although disclosure may not be absolutely required by the law, it may be "the more prudent course," according to Fried.
Real estate broker Gordon Roberts agrees: "It's better to deal with the reality of the situation. To have an issue like this emerge during the due diligence period may create ill-will and prompt further deal-killing scrutiny. Be upfront, price accordingly and let the buyer decide whether this is a problem for them. It may not be. They might be buying for the location, and welcome the extra wall space."
While early disclosure is better than later, says real estate broker Deanna Kory, a third path may be the wisest.
"Your best bet at this point is to wait till the building is built and then sell," she says. "There is practically nothing more damaging to a sale and value than the anticipation of loss of a view or ight. We see this time and again. Also, people hate to live next to construction noise."
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