Disclosure of Latent Defects:
Realtor® A had listed Seller S’s vintage home. Buyer B made a purchase offer that was contingent on a home inspection. The home inspection disclosed that the gas furnace was in need of replacement because unacceptable levels of carbon monoxide were being emitted.
Based on the home inspector’s report, Buyer B chose not to proceed with the purchase.
Realtor® A told Seller S that the condition of the furnace and the risk that it posed to the home’s inhabitants would need to be disclosed to other potential purchasers. Seller S disagreed and instructed Realtor® A not to say anything about the furnace to other potential purchasers. Realtor® A replied that was an instruction he could not follow so Realtor® A and Seller S terminated the listing agreement.
Three months later, Realtor® A noticed that Seller S’s home was back on the market, this time listed with Realtor® Z. His curiosity piqued, Realtor® A phoned Realtor® Z and asked whether there was a new furnace in the home. “Why no,” said Realtor® Z. “Why do you ask?” Realtor® A told Realtor® Z about the home inspector’s earlier findings and suggested that Realtor® Z check with the seller to see if repairs had been made.
When Realtor® Z raised the question with Seller S, Seller S was irate. “That’s none of his business,” said Seller S who became even angrier when Realtor® Z advised him that potential purchasers would have to be told about the condition of the furnace since it posed a serious potential health risk.
Seller S filed an ethics complaint against Realtor® A alleging that the physical condition of his property was confidential; that Realtor® A had an ongoing duty to respect confidential information gained in the course of their relationship; and that Realtor® A had breached Seller S’s confidence by sharing information about the furnace with Realtor® Z.
The Hearing Panel disagreed with Seller S’s contentions. It noted that while Realtors® do, in fact, have an obligation to preserve confidential information gained in the course of any relationship with the client, Standard of Practice 1-9 specifically provides that latent material defects are not considered “confidential information” under the Code of Ethics. Consequently, Realtor® A’s disclosure did not violate Article 1 of the Code of Ethics.