The North Carolina Real Estate Commission (NCREC) says that agents have a duty to discover and disclose any information that may affect the buyer’s rights and interests or influence the buyer’s decision in the transaction, i.e. material facts.

Additionally, in South Carolina, Byron King, Senior VP and General Counsel for South Carolina REALTORS®, advises that timely/proper disclosure is a risk management strategy: “Because the Residential Property Condition Disclosure Statement aka “seller disclosure” statute and case law provides a strong risk management liability for sellers and real estate licensees, South Carolina REALTORS® generally recommends that all listing brokerages require a seller disclosure and post/provide the seller disclosure in a timely/proper manner, which could include posting the seller disclosure to the MLS listing documents and/or putting seller disclosure copies into the listing property where buyers and buyer reps can read and take a copy and/or deliver to buyer/buyer reps prior to contract.”

Although not required, the MLS listing is a great place to make those disclosures, but it is not the only way, and not all agents participate or subscribe to an MLS. If the listing agent has knowledge of information that would influence the prospective buyer’s decision to purchase the listed property, and the MLS provides a required  field that enables that disclosure to be made (an example is the Special Conditions field), then failure to make the disclosure would be a violation of the Canopy MLS Rules and Regulations Sections 1(g) and 1(h), which requires the listing agreement and property data form to be complete in every detail that is reasonably ascertainable.

Specific to Canopy MLS. The Canopy MLS Rules and Regulations, Sections 1(g) and 1(h) require the listing information to be complete in every detail which is reasonably ascertainable (including all required fields), and when “other” is used in any field of a listing, to provide an explanation in the remarks field.  These rules also require submission of accurate listing data and to correct any known errors.

However, Canopy MLS does not provide fields to address every conceivable material fact, and we do not require all material facts to be disclosed in the MLS, especially if there isn’t a specific required field for the disclosure. Disclosures of material facts should be made in writing and can be made outside of the MLS. For example, in lieu of making a disclosure in the MLS, it would be acceptable to disclose material facts in a flyer placed in the property, or via email to buyer’s agents.

Why isn’t HOA Fee a required field?  If the HOA fee amount is a material fact which agents have a duty to discover and disclose, then why isn’t the HOA fee amount a required field? The Canopy MLS Board of Directors has extensively considered the question and concluded that to require entry of an amount in the MLS listing would create undue liability for listing and buyer agents due to the following circumstances which often occur: 

• The existence or amount of an HOA fee sometimes cannot be discovered.
• The HOA may be defunct which leads to confusion among sellers, buyers and agents.
• The homeowner may not be aware of a change in the fee amount.
• Some HOA management companies are unwilling to communicate with listing agents which makes it difficult for agents to confirm the amount and creates liability for misrepresentation.