What is the Duty of a Texas Seller and/or Seller's Agent to Disclose Death in a Property? As Usual, the Answer Isn't Simple

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Halloween is always an interesting time of year. The television networks are airing all of the cheesy horror flicks (which seem to be less edited for TV audiences than in years past), a chill is in the air, and the people of south Texas are dusting off their best costumes and ghost stories.

With all of the gore and killing going on in Hollywood, perhaps a whole new market of available properties is being created with each fatal slash, neck bite and supernatural abduction? After all, the Amityville Horror House (or at least the property that plays it on TV) has sold in recent years.

What better time to consider the responsibilities of Texas Sellers and their real estate professionals to disclose a death occurring upon a property?

This topic is one whose answer is so important that the Texas Legislature provided guidance in 2 separate statutes -- Section 5.008(C) of the Texas Property Code (pertaining to Sellers and Seller's agents) and  1101.556 of the Texas Occupations Code (pertaining to Texas real estate license holders). 

Those statutes, which are surprisingly consistent, provide part of the answer, as follows:

Sec. 5.008 
(c) A seller or seller's agent shall have no duty to make a disclosure or release information related to whether a death by natural causes, suicide, or accident unrelated to the condition of the property occurred on the property or whether a previous occupant had, may have had, has, or may have AIDS, HIV related illnesses, or HIV infection.
Sec. 1101.556. DISCLOSURE OF CERTAIN INFORMATION RELATING TO OCCUPANTS. Notwithstanding other law, a license holder is not required to inquire about, disclose, or release information relating to whether:

(1)  a previous or current occupant of real property had, may have had, has, or may have AIDS, an HIV-related illness, or an HIV infection as defined by the Centers for Disease Control and Prevention of the United States Public Health Service;  or

(2)  a death occurred on a property by natural causes, suicide, or accident unrelated to the condition of the property.

Given this statutory language, it might seem logical to conclude that the answer is simple: "State law doesn't require disclosure, and the superstitious, religious, paternalistic obligation of reporting death in a property has been abrogated by the Lege."  That logic, however, is overly-simplistic and fatally flawed, because the statutes don't tell the whole story, for at least a few reasons.

First, the word "homicide" does not appear in either statute. This leaves open for debate (and possibly litigation) the issue of whether a Seller and her broker have an obligation to disclose that a murder has occurred on the property. 

Second, there is no mention in the statutes of lawful, but intentional death/killing. What if the property owner/Seller legally shot and killed an intruder in self-defense under the Castle Doctrine, or a police officer fatally shoots an occupant during a domestic disturbance call?  These situations are not covered by the statutes -- even under a liberal reading.

Third, there has been some debate, and even some case law, related to whether the general requirement of disclosing "material defects" in the property's condition mandates disclosure of a death therein.  Even the TREC-promulgated Seller's Disclosure Form (OP-H) could be construed by a crafty lawyer to create enough of a fact issue that it could lead to years of litigation. See Question 6, inquiring as to a Seller's knowledge of "Any condition on the Property which materially affects the physical health or safety of an individual."

Fourth, the statutes expressly exclude death caused by and/or "related to" the property's condition.  This language is vague.  While some circumstances -- falling into a well in the backyard and dying -- seem like a good "fit" with the exclusion language, other situations are less clear. What about a toddler falling into a pool that is not enclosed and drowning?  Is this accidental? Does it relate to a condition of the property?

Given the limitations and vagaries of the statutes, the better part of caution would be to err on the side of disclosure. While the stigma of death may cause some prospective Buyers to "GET OUT" rather quickly (see Eddie Murphy video below), many will not be bothered by it, or at least not bothered enough to pass-up the right property at the right price. 

While I don't typically give advice by blog, I am comfortable stating that Texas brokers and salespersons should not  advise your own Seller-clients that Texas law allows for non-disclosure of death in a property.  At best, this is a case-by-case analysis that should be evaluated carefully, given the facts and circumstances of a particular death. 

Disclosure deficiency lawsuits abound in Texas.  I can say without reservation that over the years I've never been presented with one (either to defend or prosecute) where the Seller has disclosed too much information. 

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P.S.   With this topic, I couldn't resist thinking about perhaps the funniest stand-up comedy routine of all-time, and one of my guilty pleasures as a high school student (a group of buddies and a car cassette player in the parking lot of my Catholic school hoping not to get caught listening).  Eddie Murphy's common-sense approach to haunted properties -- while politically incorrect and somewhat vulgar -- makes a lot of sense.  If you enjoy a good laugh, and aren't easily offended, you can watch a relevant  excerpt from Delirious HERE (Warning: ** Video contains explicit language and racially insensitive content**)