Dear Forms Committee: My seller has just received an offer on their home. In reviewing the terms of the offer, the seller has a question about Section 18, Seller Representations. In reviewing items (a) – (g) the seller discovered that item (f) is inaccurate. They are aware that the neighbor’s fence encroaches onto their property by approximately two feet along the southern property line. They disclosed this encroachment in the Seller’s Property Disclosure Statement. Should they go ahead and accept the offer as written based on knowing they’ve disclosed the encroachment in the disclosure, or should they take other action due to the inaccurate representation in Section 18(f)?

Section 18 starts with “Subject to any written disclosures made by Seller as a part of this transaction, Seller makes the following representations to Buyer….”.  Because this language specifically incorporates the seller’s written disclosures as potential modifications to the representations, and if the seller includes the Seller’s Property Disclosure Statement with their written response to the buyer’s offer, additional documentation may not be necessary.  But why risk a claim from the buyer? The seller, instead of accepting the offer, should provide a Seller’s Counteroffer to the buyer describing the encroachment that makes item 18(f) inaccurate.

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