Are heirs required to sign the customary disclosure statements?

QUESTION: I have been asked to list a house whose previous owner recently passed away. The decedent’s will identifies the decedent’s daughter as the executor of his estate, and specifies that the property should pass to her and her brother at his death. The brother and sister live out of state and have very limited knowledge about their father’s property. They have asked me whether they are required to sign the Residential Property and Owners’ Association Disclosure Statement (the “RPOADS”) and the Mineral and Oil and Gas Rights Mandatory Disclosure Statement (the “MOG”). What is the answer to their question?

ANSWER: The requirements for completion of the RPOADS and the MOG are set forth in North Carolina’s Residential Property Disclosure Act. The Act specifies the types of properties that are subject to the disclosure requirements as well as the individuals who are required to make the disclosures.

Sections 47E-4 (which references the RPOADS) and 47E-4.1 (which references the MOG) of the Act both state that it is the “owner of the real property” who is obligated to complete the required forms. However, the Act also includes a definition of the word “owner.” That definition appears in Section 47E-3(1) of the Act which begins as follows: “Owner means each person having a recorded present or future interest in real estate that is identified in a real estate contract subject to this Chapter.”

The key word in this definition is “recorded.” In most cases, if the decedent has a will, and the will is filed with the Clerk of Court, it is effective to pass title to real property to the heirs named in the will immediately upon filing of the will, retroactive to the date off death. In your case, even though the heirs own the subject property, it is unlikely that their interest is recorded. Absent recordation of their interest, the heirs would not be required to complete either the RPOADS or the MOG.

Release Date: 1/4/2024