The Hawaii residential real estate purchase agreement (“Contract for Sale and Purchase of Real Estate”) is a contract which commits a buyer to an offer to purchase real estate, according to specific terms agreed by the buyer and seller. Negotiated specifics include the purchase price, financing method, closing date, and more.
Do Sellers in Hawaii Have To Disclose Property Defects?
Hawaii does require real estate sellers to disclose any material defects. In most cases, this is through a standardized disclosure form provided by the local realty agency, but any disclosure which provides the required information is valid. Unless there’s a specific written agreement otherwise, all disclosures must be provided within 10 days of a seller accepting a buyer’s offer for the purchase of real estate.
By mutual agreement, it is possible to waive the use of a standard form and handle required disclosures another way. However, the seller always has a duty to disclose all material defects that are not obvious on a casual inspection of the property, even if the buyer agrees to take the property “as-is.” The basic duty to disclose cannot be waived under any circumstances, unless the sale falls under a recognized legal exemption.
Situations in Hawaii Where Disclosure Is Not Required
The following facts do not carry a duty of disclosure:
- Whether an occupant of the property has been diagnosed with (or tested for) HIV/AIDS
- Whether the property was the site of an act or occurrence which had no effect on the physical structure or environment of the property or its improvements
The following common situations, among others, are exempt from the requirement to provide a standard disclosure:
- Sales to co-owners, spouses, parents, or children
- Sales by court order, or as part of executing a valid will
- Foreclosure and bankruptcy sales
- Sale of a leased property to the person leasing
- Sale of a time share
Required Seller Disclosures in Hawaii
Hawaii sellers of real estate must make the following disclosures, as appropriate, in order for a real estate purchase agreement to be considered legally binding:
- Hawaii Seller’s Disclosure Statement: Discloses material defects with a property that are known to the seller at the time of sale, and details any potential issues and conditions that may affect the value of the property.
- Lead-Based Paint Disclosure: Any home constructed earlier than 1978 must come with a disclosure upon the transfer of the property which includes any information about the presence of lead on the premises, as well as educational materials that communicate the health risks associated with lead exposure.
- Nuisance and Hazard Disclosure: Provides legally required disclosure when a property is at elevated risk for nuisance or hazard due to flood, sea level rise, aircraft noise, or proximity to a military installation.
Sources
- 1 Haw. Rev. Stat. § 508D-5
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(a) No later than ten calendar days from acceptance of a real estate purchase contract, the seller, either directly or through the seller’s agent, shall provide the disclosure statement to the buyer.
(b) Upon receipt of the disclosure statement, the buyer shall have fifteen calendar days to:
(1) Examine the disclosure statement; and
(2) Decide whether to rescind the real estate purchase contract.If the buyer decides to rescind the real estate purchase contract, the buyer shall deliver to the seller directly or through the seller’s agent within the fifteen-day period written notification of the buyer’s decision to rescind the real estate purchase contract. Failure to deliver the written notification to the seller within the fifteen-day period shall be deemed an acceptance of the disclosure statement. Any rescission made pursuant to this subsection shall be without loss of deposits to the buyer which deposits shall be immediately returned to the buyer.
(c) The seller and buyer may agree in writing to reduce or extend the time period provided for the delivery or examination and rescission period. The form of the receipt for the disclosure statement required by section 508D-4(2) shall provide that the buyer shall have the right to examine the disclosure statement and to rescind the real estate purchase contract in accordance with this section.
Source Link - 2 Haw. Rev. Stat. § 508D-8
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Except as otherwise provided by law, the fact that:
(1) An occupant of the residential real property was afflicted with acquired immune deficiency syndrome (AIDS) or AIDS related complex, or had been tested for human immunodeficiency virus; or
(2) The residential real property was the site of an act or occurrence that had no effect on the physical structure or the physical environment of the residential real property, or the improvements located on the residential real property;
may be excluded from the disclosure statement. This information shall not be deemed a material fact for purposes of the disclosure statement.
Source Link - 3 Haw. Rev. Stat. § 508D-3
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This chapter shall not apply to the following sales of residential real property:
(1) Sale to a co-owner;
(2) Sale to a spouse, parent, or child of the seller;
(3) Sale by devise, descent, or court order;
(4) Sale by operation of law, including but not limited to any transfer by foreclosure, bankruptcy, or partition, or any transfer to a seller’s creditor incident to a deed (or assignment) in lieu of foreclosure, workout, or the settlement or partial settlement of any preexisting obligation of a seller owed a creditor and any later sale of residential real property by such creditor;
(5) Sale by a lessor to a lessee resulting from conversion of leased land to fee simple;
(6) Initial sale of new residential real property pursuant to chapter 484 under a current public offering statement or chapter 484 exemption;
(7) Sales of condominium apartments or units accompanied by delivery of an unexpired developer’s public report; or
(8) Sale of time share interests as defined under chapter 514E.
Source Link - 4 Haw. Rev. Stat. § 508D-15(a)
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When residential real property lies within:
(1) The boundaries of a special flood hazard area as officially designated on flood maps promulgated by the National Flood Insurance Program of the Federal Emergency Management Agency for the purposes of determining eligibility for emergency flood insurance programs;
(2) The boundaries of the noise exposure area shown on maps prepared by the department of transportation in accordance with Federal Aviation Regulation part 150, Airport Noise Compatibility Planning (14 C.F.R. part 150) , for any public airport;
(3) The boundaries of the Air Installation Compatible Use Zone of any Air Force, Army, Navy, or Marine Corps airport as officially designated by military authorities;
(4) The anticipated inundation areas designated on the department of defense’s emergency management tsunami inundation maps; or
(5) The sea level rise exposure area as designated by the Hawaii climate change mitigation and adaptation commission or its successor,subject to the availability of maps that designate the five areas by tax map key (zone, section, parcel), the seller shall include the material fact information in the disclosure statement provided to the buyer subject to this chapter
Source Link
