What not to tell your broker when you're selling

When you're selling your NYC apartment, there is such a thing as oversharing with your broker.

It's true that your agent owes you a certain degree of confidentiality. But the law also requires him or her to blab about a lot of potentially damaging information.

We asked broker-blogger Malcolm Carter to deliver a punchlist of topics you might want to keep quiet about.

Warning: As he points out, you and your conscience will need to decide whether keeping mum is morally, ethically or legally suspect.

1. “When we removed a wall that was here, we discovered asbestos.” 

Sellers have a legal duty to tell their broker about any hidden defects that can materially affect value. But because brokers are legally responsible for making representations to buyers that they know (or should know) aren’t true, some brokers prefer to remain blissfully unaware.

2. “The owner before us committed (pick one) suicide, murder, himself to a mental hospital.”

A seller’s agent needs the owner’s permission to reveal that a property has been stigmatized by certain diseases, death, accidents or crimes, among other reasons. But telling a broker whose conscience looms large may provoke an unwelcome tug-of-war between the two of you should a buyer ask the right question.

3. “We had a lot of (pick one) bedbugs, mice, drug dealers until (pick one) the exterminator came, the police came, we gave up trying to get rid of them.” 

In the event of a lawsuit, if a court ultimately decides that the presence of such varmints is a material fact that affects the value of the apartment, it will cost the seller and the broker.

4. “The board hasn’t actually let us know, but I heard that the roof is leaking and we’re going to get hit with a huge assessment.” 

Whether such gossip is a material fact best discovered by buyers or lawyers in the board’s minutes or diligent inquiry is a debatable question.

5. “The dog next door barks only when he hears (pick one) people coming and going, the porter cleaning the hall, a horn outside, a toilet flushing anywhere in the building.” 

If you provide this information, the broker must disclose it if asked. Otherwise it’s up to the buyer to spend enough time in the property to find out for him or herself.

6. “The lights flicker when I use the (pick one) hair dryer, toaster, cell phone charger.” 

See #3 above.  

7.     “I’m aware of the neighbors only when they are (pick one) cooking cabbage, smoking a cigar, having sex.” 

No need to go into detail, but the broker has a duty to respond truthfully if asked.  (Most will say that they haven’t heard or smelled anything while visiting the apartment, and that may be true.)

8. “We don’t want to sell to anyone who is (pick one) black, white, Asian, unmarried, a Mormon.” 

Discrimination is a violation of the Fair Housing Act and other legislation, and brokers risk serious penalties by working with clients who express such preferences.

9.    “I have to sell because I lost my job and my husband is leaving me.” 

Although bound to keep confidential such personal information unless released from doing so, some brokers may choose to give broad hints to the buyer: “The seller is flexible, so make any offer.” 

Sensing desperation, a buyer could cost you far more than a broker eager to make a quick sale.  And a $100,000 loss to you would probably not amount to more than a $1,500-3,000 loss to your broker.

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