Key takeaways
- Every seller of a home built before 1978 must follow the federal lead-based paint disclosure rule, whether or not an agent is involved.
- States take different approaches: some require a specific statutory form, others impose a general duty to disclose, and a few lean toward buyer beware.
- A material defect is a known fact that would matter to a reasonable buyer, such as roof leaks, water intrusion, foundation movement, or unpermitted work.
- Even in buyer-beware states, active concealment and false statements can lead to lawsuits, rescission, and damages.
- Disclose in writing, attach records, update the form if conditions change, and keep signed copies.
This guide is for owners selling a home, especially without an agent, who want to meet their disclosure duties and avoid a lawsuit after closing. You’ll learn the federal lead-based paint rule step by step, how state disclosure laws differ, what counts as a material defect, and how to fill out the forms well.
Two layers of disclosure law
Seller disclosure works on two levels. Federal law covers one hazard nationwide: lead-based paint in homes built before 1978. State law covers everything else, including the roof, foundation, water, pests, systems, and legal issues, and it differs a lot from state to state. Some cities and counties add their own requirements on top.
Selling by owner doesn’t change any of this. Disclosure duties belong to the seller, and without an agent prompting you, getting it right is entirely on you.
The federal lead-based paint disclosure rule
Section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 directed EPA and HUD to issue joint disclosure rules, which took effect in the mid-1990s. The rule applies to most housing built before 1978, the year the federal government banned lead-based paint for residential use.
What you must do before the buyer is bound
Before the buyer is obligated under the contract, a seller of covered housing must:
- Give the buyer the EPA pamphlet, Protect Your Family From Lead in Your Home. EPA updated it in 2026, so download the current version from the EPA website.
- Disclose any known lead-based paint or lead-based paint hazards, including their location and condition.
- Provide any available records or reports about lead in the home, such as a prior inspection or risk assessment.
- Include the lead warning statement and disclosure language in the contract or an attached addendum, with signatures and dates from both parties.
- Give the buyer a 10-day opportunity to conduct a lead inspection or risk assessment at the buyer’s expense. The parties can agree in writing to a longer or shorter period, or the buyer can waive it.
- Keep signed copies for at least three years after the sale.
The rule doesn’t require you to test for lead or remove it. It requires you to share what you know and give the buyer the chance to find out more. There are a few narrow exemptions, such as foreclosure sales and housing that a certified inspector has found free of lead-based paint.
Common lead-disclosure mistakes
- Disclosing after the buyer is already bound. If an offer arrives before you’ve disclosed, deliver the pamphlet and disclosure, and let the buyer review them and revise the offer if they want, before you accept.
- Checking “no known lead” when a report exists. An old inspection from your own purchase or a renovation contractor’s lead test counts as information you have.
- Skipping the pamphlet or handing over a photocopy so faded it can’t be read.
- Losing the signed forms. Scan them into your closing file and keep them for at least three years.
- Assuming a cash or as-is sale is exempt. The rule turns on the age of the housing, not the type of financing.
Penalties
Each failure to comply can count as a separate violation, with federal civil penalties per violation that are adjusted for inflation over time. A buyer can also sue for three times their actual damages, plus costs and attorney fees. On a pre-1978 home, missing a free form is an expensive mistake.
How state disclosure laws differ
There’s no single national seller disclosure form. States fall roughly into three groups, and the lines between them blur.
| State approach | What it generally means | What you should do |
|---|---|---|
| Mandatory statutory form | State law requires a specific written disclosure for most residential sales, often with a delivery deadline | Use the current official form, deliver it on time, and get the buyer’s signed acknowledgment |
| Duty to disclose without a set form | Statute or court decisions require sellers to disclose known material defects | Disclose in writing on a thorough form anyway |
| Buyer beware (caveat emptor) leaning | No broad duty to volunteer defects, but fraud, misrepresentation, and active concealment remain illegal | Disclose known material defects in writing anyway; never conceal or mislead |
Examples of statutory forms include California’s Real Estate Transfer Disclosure Statement and Texas’s Seller’s Disclosure Notice. Some state forms run several pages and ask about specific items such as flood history, insurance claims, smoke detectors, or neighborhood noise.
Many states exempt certain transfers, such as foreclosure sales, some estate and trust sales by fiduciaries who never lived in the home, and transfers between co-owners or family members. Exemptions, deadlines, and the buyer’s remedies for late delivery vary widely. Rules vary by state, so confirm with a local real estate attorney which form you need and when it’s due.
What counts as a material defect
A material defect is generally a fact you know about that would significantly affect a reasonable buyer’s decision or the property’s value. Common examples:
- Water: roof leaks, basement seepage, drainage problems, plumbing leaks, past flooding
- Structure: foundation cracks or movement, sagging framing, failed retaining walls
- Systems: furnace, air conditioning, electrical panel, or water heater problems; known wiring hazards
- Environmental: mold, radon test results, underground oil tanks, lead-based paint
- Pests: termite or other wood-destroying insect damage, past treatments
- Septic and well: failures, repairs, or test results
- Legal and title: unpermitted additions, open code violations, boundary disputes, easements, pending HOA special assessments
- Insurance: past claims for water, fire, or storm damage
Some states also address stigmatized-property issues, such as a death on the property, and notice about sex offender registries. These rules are highly state-specific.
How to complete your disclosure form
- Get the current official form for your state, from your state real estate commission, a bar association, or your attorney.
- Answer every question. A blank looks like evasion.
- Use “unknown” only when you truly don’t know. If you saw water in the basement two springs ago, you know.
- Explain the history. For each issue, say what happened, when, what was done, and by whom.
- Attach records: inspection reports, repair invoices, permits, warranties, and test results.
- Disclose past problems that were fixed when the form asks, along with proof of the fix.
- Update the form if you learn something new or conditions change before closing.
- Get the buyer’s signed and dated acknowledgment, and keep a copy with your closing file.
A pre-listing inspection can help you answer accurately, but anything it uncovers becomes something you know and must disclose.
Consequences of non-disclosure
A buyer who discovers a hidden defect after closing has several possible claims, depending on the state: fraud, intentional or negligent misrepresentation, or violation of the disclosure statute. Remedies can include repair costs and other damages, rescission of the sale, attorney fees in some cases, and punitive damages for egregious fraud. An as-is clause usually won’t protect a seller who concealed a known problem.
Here’s an example. You paint over water stains from a basement leak and check “no” for water intrusion. The buyer gets water the first spring, and a contractor quotes $18,000 to waterproof. Now you’re facing a claim for the repair cost, possibly more, plus your own legal fees. Disclosing the leak upfront might have cost you a price reduction of a similar amount, and none of the legal fees, stress, or risk.
Disclosure rarely kills a deal; surprises do. Buyers expect older homes to have a history. What they don’t forgive is finding it after closing.
Disclosure tips for FSBO sellers
- Deliver disclosures early, ideally before you accept an offer, so the buyer’s price already reflects what they know.
- Put the lead disclosure addendum in every contract for a pre-1978 home.
- Keep all disclosures in writing; verbal mentions are hard to prove.
- If the buyer’s agent supplies forms, read them carefully. You sign them, so the answers are yours.
- When in doubt, disclose. See how to sell your house by owner for where disclosures fit in the process, and negotiating offers without an agent for handling repair requests after inspection.
Next steps
- Add disclosures to your task list with the interactive FSBO checklist.
- Gather everything else you’ll need using documents needed to sell a house by owner.
- Have a local real estate attorney review your forms; find one through ByOwners pros.
Frequently asked questions
What does the federal lead-based paint rule require of home sellers?
For most homes built before 1978, you must give the buyer the EPA pamphlet, disclose known lead-based paint and hazards and any related reports, include lead warning language in the contract, and offer a 10-day inspection opportunity unless the buyer waives it in writing.
Do I have to disclose problems I already fixed?
Often yes, depending on your state's form, and it is usually wise anyway. Disclosing a past roof leak along with the repair invoice and warranty builds trust and shows the issue was handled properly.
What if I don't know the answer to a disclosure question?
Answer unknown only if you truly don't know. Guessing wrong can create liability, and claiming ignorance of something you clearly knew about can be treated as concealment.
Does selling as-is mean I don't have to disclose defects?
Generally no. An as-is clause usually means you won't make repairs, but it typically doesn't protect a seller who hid known defects or made false statements. State disclosure laws still apply.
Are FSBO sellers held to the same disclosure rules?
Yes. Disclosure laws apply to the seller, and the federal lead rule applies to sellers whether or not an agent is involved. Without an agent, you are fully responsible for getting the forms right.
Sources
- U.S. EPA, Protect Your Family from Lead in Your Home: Real Estate Disclosure
- U.S. EPA, Protect Your Family From Lead in Your Home (pamphlet)
- U.S. Department of Housing and Urban Development, The Lead Disclosure Rule
- 42 U.S.C. 4852d, Disclosure of information concerning lead upon transfer of residential property
- Federal Register, Lead; Requirements for Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards in Housing (March 6, 1996)