Seller disclosure in Illinois: the form, radon and lead rules

Is a disclosure form required by law?

Yes. Section 20 of the Act says the seller “shall complete all items in the disclosure report” and deliver it to the buyer “before the signing of a contract.” The Act covers sales, exchanges, installment contracts, leases with an option to buy and ground leases of residential property with one to four dwelling units, plus condo and co-op units (765 ILCS 77/5, 77/10).

The form is set by the statute itself (Section 35), so there is no separate state agency form. Delivery can be by hand, email or other electronic means, first-class mail or a courier, and it counts once the buyer receives it (Section 50).

What the report covers

The seller answers “yes,” “no” or “not applicable” to 24 statements. A few examples from the statutory form:

• Flooding or leaks in the basement or crawl space, and whether the home is in a floodplain
• Defects in the roof, foundation, walls, electrical, plumbing, heating and cooling systems
• Unsafe radon, asbestos, lead paint, lead pipes or lead in the soil
• Termite infestation or damage, underground fuel tanks, mine subsidence
• Boundary disputes and uncorrected code violations
• Use of the property to make methamphetamine

Two points limit the form. It asks only about what the seller actually knows: “aware” means “actual notice or actual knowledge without any specific investigation or inquiry” (Section 35), and the seller has no duty to investigate (Section 25). And the form says it is not a warranty. Buyers still choose their own inspections; see what a home inspection costs.

If the seller learns of an error before closing, the seller must deliver a written supplement (Section 30).

Radon: a second form

The Illinois Radon Awareness Act (420 ILCS 46/10) requires the seller, before the buyer is bound by a contract, to give the buyer the state radon pamphlet from the Illinois Emergency Management Agency and a “Disclosure of Information on Radon Hazards” form. The seller must also share any radon test results in the seller’s possession. The Act does not make the seller test for radon or fix it. If any of this happens after the buyer’s offer, the seller must complete it before accepting the offer (Section 10(c)).

Federal lead-based paint rule (homes built before 1978)

For housing built before 1978, federal rules (40 CFR 745.107 and 745.110) add four duties before the buyer is bound: give the EPA lead pamphlet, disclose known lead-based paint and hazards, hand over any lead records or reports, and allow a 10-day period for a lead inspection or risk assessment unless the parties agree in writing to another period. The buyer may waive that inspection in writing. EPA also tells sellers to keep signed disclosures for three years.

Exemptions

Section 15 exempts, among others: transfers ordered by a court or made by an estate or trust fiduciary, transfers between co-owners, transfers to a spouse or to a lineal relative, transfers to or from a government body, foreclosure transfers (a deed in lieu, a judicial deed or a lender’s resale after foreclosure) and newly built homes never occupied. The radon law has a similar list (420 ILCS 46/20). Buying after a foreclosure? See foreclosure in Illinois.

What happens if a seller does not disclose

The right to cancel ends once the property is conveyed (Section 40(c)). Other law still applies: the Act does not limit remedies for fraud or misrepresentation (Section 45). For earnest money rules, see earnest money.