Quick answer: No, not for most home sellers. Illinois requires sellers of one to four unit homes to give buyers a written disclosure report before a contract is signed, plus a radon pamphlet and form. Homes built before 1978 add a federal lead paint disclosure. You disclose what you actually know, without having to go looking.
“Buyer beware” gets repeated around a lot of Metro East kitchen tables, usually by someone who last sold a house in 1985. It is worth clearing up, because the answer changes what you put in writing before you list.
Here are the four disclosure rules that apply to a typical house sale in Belleville and St. Clair County, who is exempt, and what to do if a problem turns up after the buyer has your report. This is not legal advice. If your situation is unusual, call a real estate attorney.
Rule 1: the Illinois Residential Real Property Disclosure Report
The big one is the Residential Real Property Disclosure Act (765 ILCS 77). It applies to homes with one to four dwelling units, condominium units and co-op units. If you are selling a house in Swansea or a condo in O’Fallon, it almost certainly applies to you.
The Act spells out the form word for word. It has 24 yes, no or not applicable statements, and they are specific:
- Flooding or recurring leaks in the basement or crawl space, and whether the property is in a floodplain
- Material defects in the foundation, roof, walls, windows, floors, electrical, plumbing, heating and cooling, fireplace, well, or septic and sewer
- Unsafe radon, asbestos or lead conditions you are aware of
- Mine subsidence, settlement or other earth stability problems
- Current termites, or structural damage from past termites
- Underground fuel tanks, boundary disputes, and uncorrected code violation notices
- Whether the property was ever used to make methamphetamine
Any yes or not applicable answer after question 1 needs an explanation.
What “aware” means on the form
This part relieves most sellers. The form defines “aware” as actual notice or actual knowledge, without any specific investigation or inquiry. No inspector or testing required.
A “material defect” is a condition that would have a substantial adverse effect on the value of the property or would significantly impair the health or safety of future occupants, unless you reasonably believe it has been corrected. The form also says it covers current condition, not past problems you reasonably believe were fixed. So a basement that leaked before you had drain tile installed is a different conversation from one that leaked last spring.
When the report is due
Before the buyer signs a contract, so in practice it should be ready when the house goes on the market.
If a report that discloses a material defect is delivered late, after everyone has already signed, the buyer gets 5 business days after receiving it to cancel and get their earnest money back. If the report is never delivered before closing, the buyer has the right to terminate the contract.
If you discover a problem after the buyer has your report
It happens. A storm puts a leak in the roof after you signed. If, before closing, you become aware of an error, inaccuracy or omission in your report, the Act says you must deliver a written supplement.
A supplement does not automatically let the buyer walk. Under Section 40, the buyer can terminate only if:
- You actually knew about it when you signed the original report.
- It cannot be repaired before closing.
- It can be repaired, but within 5 business days of delivering the supplement you decline, or fail to agree in writing, to fix it.
That right ends once the property is conveyed. The contract may give the buyer other rights, so read it with your attorney.
What happens if a seller gets it wrong
You are not liable under the Act for an error you did not know about, something you reasonably believed was corrected, or information from a public agency or a licensed engineer, surveyor, pest control operator or contractor, as long as you did not know it was wrong.
A seller who knowingly violates the Act, or puts something on the report they know is false, is liable for actual damages and court costs, and the court may award attorney’s fees to the winning side. A lawsuit under the Act has to be filed within one year of the earliest of possession, occupancy or recording of the deed. The Act does not limit other remedies, such as fraud claims.
Who is exempt from the Illinois disclosure report
Section 15 lists the exemptions. The ones that come up most around here:
- Transfers under a court order, including probate, divorce judgments and bankruptcy trustees
- Foreclosure transfers, including a deed in lieu and sales by the lender that took the property back
- Sales by a fiduciary administering an estate, guardianship, conservatorship or trust
- Transfers from one co-owner to another, and transfers to a spouse, children, parents or other lineal relatives
- Transfers to or from a government entity
- Newly built homes that have never been occupied (a rehab of an existing house does not count)
Exempt from the report does not mean free to hide a known problem, and the radon and lead rules have their own exemption lists. Selling a parent’s house as executor? Ask the estate attorney which forms to provide anyway.
Rule 2: the Illinois Radon Awareness Act
Separately, the Illinois Radon Awareness Act (420 ILCS 46) requires sellers of residential property to give the buyer two things before the buyer is obligated under a contract:
- The IEMA pamphlet “Radon Testing Guidelines for Real Estate Transactions” (or an IEMA approved equivalent).
- The Illinois Disclosure of Information on Radon Hazards form, where you note whether you know of elevated radon levels and whether you have test records.
You are not required to test for radon or mitigate it. If you do have test results in your possession that show elevated levels, you have to hand them over. If the radon paperwork happens after a buyer makes an offer, you complete it before accepting the offer and give the buyer a chance to review it and possibly amend their offer.
The EPA recommends fixing a home at 4 pCi/L or higher. If you have a mitigation system, find that paperwork now.
Rule 3: lead paint disclosure for homes built before 1978
If your house was built before 1978, add this one to the list. The federal Real Estate Notification and Disclosure Rule requires sellers of pre-1978 housing to:
- Give the buyer the EPA pamphlet “Protect Your Family From Lead in Your Home”
- Disclose any known lead-based paint or lead-based paint hazards
- Provide any lead records or reports you have
- Include the Lead Warning Statement in the contract
- Give the buyer a 10-day opportunity for a lead inspection or risk assessment (the buyer can waive it)
- Keep a signed copy of the disclosure for three years after the sale
Again, no testing required. Just honesty about what you know and what you have on paper.
Rule 4: what your listing agent has to disclose
Sellers sometimes tell their agent about a problem and ask them to keep it quiet. That does not work in Illinois. Under Section 15-25 of the Real Estate License Act (225 ILCS 454), a licensee working for a seller must timely disclose to prospective buyers all latent material adverse facts about the physical condition of the property that the licensee actually knows and that a buyer could not discover with a reasonably diligent inspection.
In plain terms: if I know a foundation crack is hidden behind new drywall, I have to tell buyers. Better that it is on your report from day one, with the receipts.
What about selling “as is”?
You can. The Illinois report says it does not limit the right to sell in “as is” condition. But “as is” is about what you will fix, not what you will tell. The report is still required unless your sale is exempt.
The honest take
Disclose. Every known issue, in writing, with repair receipts. Most buyers will have the house inspected anyway. A problem they read about before making an offer is priced in. The same problem found during the inspection turns into a renegotiation, or a cancelled contract.
Unsure whether something counts? Ask a real estate attorney rather than guessing on a legal form. Our St. Clair County home sellers guide covers the rest of the process.
Frequently asked questions
Is Illinois a buyer beware state?
Not for most home sales. The Illinois Residential Real Property Disclosure Act requires sellers of one to four unit homes, condos and co-ops to give buyers a written disclosure report of known material defects before a contract is signed, unless the sale fits an exemption such as a court ordered, foreclosure or estate transfer.
Do Illinois sellers have to inspect or test their home before disclosing?
No. The Illinois report is based on your actual knowledge without any specific investigation, and the Radon Awareness Act does not require testing or mitigation. You must share radon or lead reports you already have, and disclose defects you know about.
What if I find a problem after the buyer has my disclosure report?
If you learn of an error or omission before closing, you must give the buyer a written supplement. The buyer can terminate only if you knew about the issue when you signed the original report, the defect cannot be repaired before closing, or you decline to agree in writing to repair it within 5 business days.
How long does a buyer have to sue over an Illinois disclosure report?
An action under the Residential Real Property Disclosure Act must be filed within one year of the earliest of possession, occupancy or recording of the deed. The Act does not limit other remedies such as fraud claims, so talk with a real estate attorney about your specific situation.
Getting ready to sell?
The disclosure report is easier when you are not filling it out the night before your listing goes live. If you might sell in the next few months, gather the repair receipts, radon results and permits now, and get a free home value estimate so you know where you stand. Or call, and we will go through the forms together.
Craig Ziegel, Single Tree Team, eXp Realty. Serving Belleville, O’Fallon, Shiloh, Swansea, Mascoutah, Millstadt, Freeburg and the rest of St. Clair County.
