Disclosure or Disclaimer? The Choice Maryland Gives Home Sellers

Most states make a home seller fill out a condition disclosure and leave it there. Maryland does something different. It gives you a choice between two forms, and sellers regularly pick one without understanding what the other one would have meant.

The choice is real and it matters. What surprises people is the part that does not change no matter which box you check.

The two forms

Maryland law requires the seller of most single-family residential property to complete and deliver one of two statements to the buyer, both issued by the State Real Estate Commission:

• A residential property condition disclosure statement, in which you answer a long list of questions about the property's condition based on what you know: the systems, the roof, the foundation, water and sewer, known infestations, and so on.
• A residential property disclaimer statement, in which you make no representations or warranties about the condition of the property at all, and the buyer takes it as is.

Source: Md. Code, Real Property §10-702

One or the other. Not both, and not neither.

The duty that follows you into either one

Here is the part that catches people. Choosing the disclaimer does not mean you have said nothing about the house.

Under either form, a seller must disclose latent defects they have actual knowledge of. The disclaimer statement itself carries that carve-out on its face: no representations or warranties except for latent defects the seller knows about.

Maryland defines a latent defect narrowly, and both halves of the definition have to be true. It is a material defect that:

• a buyer would not reasonably be expected to discover through a careful visual inspection, and
• would pose a direct threat to the health or safety of the buyer or an occupant.

Source: Md. Code, Real Property §10-702

A worn roof visible from the driveway is not a latent defect, because a buyer could see it. A cosmetic problem hidden behind drywall is not one either, because it threatens nobody. Something concealed that could hurt the person living there is what the statute is aimed at.

Selling as is does not switch this off. As-is describes what you are agreeing to repair, which is nothing. It does not describe what you are permitted to stay quiet about.

So what separates the two

Both forms carry the latent-defect duty. What separates them is how much you say beyond it.

The disclosure statement puts your knowledge of the property on the record in detail. The disclaimer says you are not characterizing the condition at all, beyond the latent defects you know about.

Sellers reach for the disclaimer for different reasons. Someone who has never lived in the house, an owner who inherited it, an investor who bought and held it, may genuinely have no useful knowledge to disclose, and answering fifty questions with unknown serves nobody. Other sellers know the house intimately and would rather put that on paper.

Which one fits a particular sale depends on facts specific to that sale, and it is a conversation for you, your agent, and where the property has any history worth thinking about, an attorney. What is worth understanding before that conversation is that the disclaimer is not a way to avoid disclosing something you know is dangerous.

Timing, and the buyer's right to walk

The statement is supposed to reach the buyer before the contract is signed.

If it does not, the buyer gets an unconditional right to rescind the contract. They can exercise it by written notice any time before receiving the statement, or within five days after they receive it. That right does not last forever. It ends at closing or when the buyer takes occupancy, whichever comes first, and it can end earlier in connection with a mortgage application depending on when the lender's disclosures land.

The practical version: an unsigned or undelivered form is not a paperwork problem that gets cleaned up at settlement. For a window of time it hands the buyer a way out of the deal that has nothing to do with the inspection or the appraisal.

Source: Md. Code, Real Property §10-702

When the requirement does not apply at all

Not every Maryland transfer triggers this. The statute exempts a list, including:

• The initial sale of a home that has never been occupied, or where the certificate of occupancy was issued within the past year
• Sales by foreclosure, deed in lieu of foreclosure, sheriff's sale, tax sale, or a partition sale
• Transfers by a fiduciary in the course of administering an estate, a guardianship, a conservatorship, or a trust
• Unimproved land
• Property being converted to non-residential use or demolished

Source: Md. Code, Real Property §10-702

The estate exemption is the one that comes up most in practice. A personal representative selling a house during administration is generally not required to produce the statement, which makes sense: they may never have set foot in the property. That exemption is about the form. It is not a license to conceal a known danger, and anyone selling from an estate should get that boundary from the attorney handling it.

General information, not legal advice

This describes how Maryland's disclosure law is structured. It is general information, not legal advice. Danielle is a real estate licensee, not an attorney. Which form fits your sale, and what a specific condition in your house means for it, is a question for a Maryland real estate attorney, and it is a far cheaper conversation before you list than after a buyer's lawyer raises it.

What sellers get wrong about it

Two patterns show up repeatedly.

The first is treating the disclaimer as armor. It is not. A seller who knows about a concealed condition that could hurt somebody carries that obligation into either form, and choosing the disclaimer while staying quiet is the fact pattern that produces litigation after settlement.

The second is filling out the disclosure carelessly. Answering from memory on a Sunday afternoon, guessing at the age of the roof, checking no where the accurate answer is unknown: each of those is a statement the buyer is entitled to rely on. Unknown is an available answer and it is not an admission of anything.

The form is a legal document that outlives the closing. It deserves the same attention as the contract.

Maryland's approach assumes the seller knows things a buyer cannot see, and it builds a choice around how much of that knowledge goes on the record. The choice is genuine. The floor underneath it does not move: whatever you know to be hidden and dangerous belongs on the page, whichever page you pick.