RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE REAL ESTATE COMMISSION
[ 49 PA. CODE CH. 35 ]
Seller Property Disclosure Statement
[46 Pa.B. 7638]
[Saturday, December 10, 2016]The State Real Estate Commission (Commission) amends § 35.335a (relating to seller property disclosure statement) to read as set forth in Annex A.
Background and Purpose
The Commission is required to promulgate a form of property disclosure statement that satisfies the requirements of 68 Pa.C.S. Chapter 73 (relating to Real Estate Seller Disclosure Law) (act) under section 7304 of the act (relating to disclosure form). Section 7304(b) of the act lists the subjects that call for disclosures on the property disclosure statement. The act of June 19, 2015 (P.L. 23, No. 6) (Act 6) amended the act to add sinkholes and storm water facilities to the list of subjects requiring disclosure on the property disclosure statement.
Omission of Proposed Rulemaking
Under section 204 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. § 1204), known as the Commonwealth Documents Law (CDL), the Commission is authorized to omit the procedures for proposed rulemaking in sections 201 and 202 of the CDL (45 P.S. §§ 1201 and 1202) if theCommission finds that the specified procedures are impracticable, unnecessary or contrary to the public interest. The Commission determined that publication of proposed rulemaking is unnecessary under the circumstances because section 3 of Act 6 requires the Commission to promulgate the revised property disclosure statement as a final rulemaking, with notice of proposed rulemaking omitted under section 204 of the CDL.
Description of the Amendment
Act 6 amended the act to add sinkholes and storm water facilities to the list of subjects requiring disclosure on the property disclosure statement. In amending the property disclosure statement, the Commission includes sinkholes in section 13 of the property disclosure statement which deals with soils, drainage and boundaries. The Commission also adds a section that deals specifically with storm water facilities.
Statutory Authority
Section 404 of the Real Estate Licensing and Registration Act (RELRA) (63 P.S. § 455.404) authorizes the Commission to promulgate and adopt rules and regulations not inconsistent with law as it deems necessary for the performance of its duties and the proper administration of the RELRA. Section 7304 of the act requires the Commission to promulgate a form of property disclosure statement that satisfies the requirements of the act. Section 3 of Act 6 requires promulgation of a final-omitted rulemaking that amends the property disclosure statement.
Fiscal Impact and Paperwork Requirements
This final-omitted rulemaking will not have a fiscal impact on, or create additional paperwork for, the regulated community, the Commonwealth or its political subdivisions. A group or association that may have printed its own property disclosure statement might have a cost associated with reprinting and revising the statement to comply with this final-omitted rulemaking. However, that cost should be minimal due to the minimal changes to the property disclosure statement.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P.S. § 745.5a(c)), on October 11, 2016, the Commission submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P.S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on November 16, 2016, the final-omitted rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 17, 2016, and approved the final-omitted rulemaking.
Additional Information
For additional information about this final-omitted rulemaking, submit inquiries to Krista Linsenbach, State Real Estate Commission, P.O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-3658, RA-REALESTATE@pa.gov.
Findings
The Commission finds that:
(1) Public notice of the Commission's intention to amend its regulations under the procedures in sections 201 and 202 of the CDL has been omitted under section 204 of the CDL because public comment is unnecessary in that the amendments to § 35.335a implement amendments to the act, and section 3 of Act 6 directs the Commission to promulgate a final-omitted rulemaking.
(2) The amendment of the Commission's regulations in the manner provided in this order is necessary and appropriate for the administration of the act.
Order
The Commission, acting under its authorizing statute, orders that:
(a) The regulations of the Commission, 49 Pa. Code Chapter 35, are amended by amending § 35.335a to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Commission shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(c) The Commission shall submit this order and Annex A to IRRC, the HPLC and the SCP/PLC as required by law.
(d) The Commission shall certify this order and Annex and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
JOSEPH J. McGETTIGAN,
Chairperson(Editor's Note: See 46 Pa.B. 7603 (December 3, 2016) for IRRC's approval order.)
Fiscal Note: 16A-5623. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 35. STATE REAL ESTATE COMMISSION
Subchapter E. STANDARDS OF CONDUCT AND PRACTICE
REAL ESTATE DOCUMENTS § 35.335a. Seller property disclosure statement.
The seller's property disclosure statement must, at a minimum, contain the following disclosures:
Seller's Property Disclosure Statement Property address: __________
Seller: __________
A seller must disclose to a buyer all known material defects about property being sold that are not readily observable. This disclosure statement is designed to assist the seller in complying with disclosure requirements and to assist the buyer in evaluating the property being considered.
This statement discloses the seller's knowledge of the condition of the property as of the date signed by the seller and is not a substitute for any inspections or warranties that the buyer may wish to obtain. This statement is not a warranty of any kind by the seller or a warranty or representation by any listing real estate broker, any selling real estate broker or their agents. The buyer is encouraged to address concerns about the condition of the property that may not be included in this statement. This statement does not relieve the seller of the obligation to disclose a material defect that may not be addressed on this form.
A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the residential real property or that involves an unreasonable risk to people on the land. The fact that a structural element, system or subsystem is near, at or beyond the end of its normal useful life is not by itself a material defect.
* * * * * (13) Land (soils, drainage, boundaries and sinkholes).
(i) Are you aware of any fill or expansive soil on the property? ____ yes ____ no
(ii) Are you aware of any sliding, settling, earth movement, upheaval, subsidence or earth stability problems that have occurred on or that affect the property? ____ yes ____ no
NOTE TO BUYER: Some properties may be subject to mine subsidence damage. Maps of the counties and mines where mine subsidence damage may occur and mine subsidence insurance are available through the Department of Environmental Protection, Mine Subsidence Insurance Fund.
(iii) Are you aware of any existing or proposed mining, strip mining or any other excavations that might affect this property? ____ yes ____ no
(iv) To your knowledge, is this property or part of it located in a flood zone or wetlands area? ____ yes ____ no
(v) Do you know of any past or present drainage or flooding problems affecting the property? ____ yes ____ no
(vi) Do you know of any encroachments, boundary line disputes or easements? ____ yes ____ no
NOTE TO BUYER: Most properties have easements running across them for utility services and other reasons. In many cases, the easements do not restrict the ordinary use of the property, and the seller may not be readily aware of them. Buyers may wish to determine the existence of easements and restrictions by examining the property and ordering an abstract of title or searching the records in the Office of the Recorder of Deeds for the county before entering into an agreement of sale.
(vii) Are you aware of any shared or common areas (for example, driveways, bridges, docks, walls, etc.) or maintenance agreements? ____ yes ____ no
(viii) Are you aware of any sinkholes that have developed on the property? ____ yes ____ no
Explain any ''yes'' answers that you give in this section:
(14) Hazardous substances.
(i) Are you aware of any underground tanks or hazardous substances present on the property (structure or soil), including, but not limited to, asbestos, polychlorinated byphenyls (PCBs), radon, lead paint, urea-formaldehyde foam insulation (UFFI), etc? ____ yes ____ no
(ii) To your knowledge, has the property been tested for any hazardous substances? ____ yes ____ no
(iii) Do you know of any other environmental concerns that might impact upon the property? ____ yes ____ no
Explain any ''yes'' answers that you give in this section:
(15) Condominiums and other homeowners associations (complete only if applicable).
Type: ____ condominium* ____ cooperative ____ homeowners association ____ other
If ''other,'' please explain: __________
NOTICE REGARDING CONDOMINIUMS AND COOPERATIVES: According to section 3407 of the Uniform Condominium Act (68 Pa.C.S. § 3407) (relating to resales of units) and 68 Pa.C.S. § 4409 (relating to resales of cooperative interests), a buyer of a resale unit in a condominium or cooperative must receive a certificate of resale issued by the association in the condominium or cooperative. The buyer will have the option of canceling the agreement with return of all deposit moneys until the certificate has been provided to the buyer and for 5 days thereafter or until conveyance, whichever occurs first.
(16) Storm water facilities.
(i) Do you know the location and condition of any basin, pond, ditch, drain, swale, culvert, pipe or other manmade feature of land that temporarily or permanently conveys or manages storm water for the property? ____ yes ____ no ____ unknown
(ii) If the answer to (i) is yes, is the owner of this property responsible for the ongoing maintenance of the storm water facility? ____ yes ____ no ____ unknown
Explain any ''yes'' answers that you give in this section:
(17) Miscellaneous.
* * * * *
[Pa.B. Doc. No. 16-2115. Filed for public inspection December 9, 2016, 9:00 a.m.]
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