Seller asks if ‘unstable’ trees must be disclosed as defect to homebuyer


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Dear Real Estate Adviser,
We signed an agreement to sell our home with a closing date set for mid-June. But our inspector said that 2 of my 100-foot trees that I thought were healthy are unstable and could fall and damage the house and garage. Should I disclose this latent defect and, if so, does this give the buyer grounds to opt out?
— Kevin M.

Dear Kevin,
There are 2 answers to your disclosure question: a legal one and an ethical one.

Legally, opinions vary on whether you’re obligated to disclose in this situation. Some industry experts say you aren’t obliged because your highly visible trees, at least technically, aren’t “hidden” defects.

But you should also know that real estate laws are pretty consistent in stating that sellers can’t engage in active concealment of known property defects. Your inspector informed you of one such defect, whether or not that observation was officially noted.

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By the way, you aren’t obliged to present your report unless contractually bound. Even if the inspector did note the tree problem, it might be considered only an opinion — albeit an opinion buyers might use against you if they sue should one of those behemoth trees comes clattering down on them a few months post-sale.

Ethically, disclosing everything you know about the condition of your property as a seller is always best practice, especially in this litigious environment. When you buy your replacement house, you’d expect the same courtesy, I presume. Besides, a sharp-eyed buyer’s inspector could alert his clients to the trees if they’re really so menacing, although trees, to be honest, aren’t always on inspectors’ radar screens.

Seek help for latent defect from arborist

Before you do anything, I strongly suggest you consult a professional arborist who will be familiar with your trees’ species and possibly be able to provide a reasonable solution for stabilizing them. Some cures include pruning limbs for better weight distribution or attaching cables, which would cost you $1,000-plus, not including annual cable-maintenance costs, which your buyer would assume.

Such an arborist, who typically charges from $100 to $150 per hour with a one-hour minimum, will at least give you a much-needed second opinion after a non-arborist told you that your seemingly healthy, 100-foot trees need to come down. Compare that fee with the cost of having a pair of 100-footers felled for about $4,000, a price driven by the need to use climbing gear, ropes, additional personnel, plus the extra time involved.

Buyers may want the trees

Hopefully, you can save one or both trees. Trees add curb appeal and can account for 20% or more of a property’s market value in some cases. Said trees may have been very important in attracting your buyers in the first place, after all.

And yes, the discovery of these supposedly menacing trees in an inspection would give your buyers grounds to opt out. Whatever the remedy, it is definitely something you can negotiate with the buyers, maybe agreeing to split the costs only if you have some sellers’-market negotiating clout.

Open communication between the buying and selling parties is almost always the best course.

Good luck!

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