Listing a Home for Sale or Buying a Home? New Changes to PCDS regarding Flood Disclosure and Loss of Seller $500 Opt-Out Credit become effective March 20, 2024
For only the second time in its 21 year history, the New York statutory form Property Condition Disclosure Statement (commonly referred as PCDS) pursuant to Real Property Law Article 14 (§§460 – 467) has been amended. As you may recall, as of past June 14, 2023, sellers were required to disclose the existence of indoor mold to any prospective buyer.
What the Changes to the PCDS Mean for Home Sellers or Buyers
As has been observed in recent years, climate change has caused an increased risk of flooding in certain areas of New York State. In September 2023, Governor Hochul signed an additional amendment to the PCDS regarding Flood Risk Disclosure.
Disclosure of Water Penetration or Damage
Under the concept of a “right to know” for homebuyers, this amendment adds a number of additional questions including whether the property is in a Federal Emergency Management (“FEMA”) designated floodplain, whether it is located in a “100 year” or “500 year” floodplain, and whether there currently is flood insurance coverage. An additional question now requires the seller to disclose whether the structure has had any water penetration or damage due to a natural flood event.
Elimination of the PCDS Opt-Out Credit
The other important change deals with the elimination of the Opt-Out credit which allowed the seller to not provide a PCDS and give the buyer $500 at closing. The title of §465 has been changed to “Liability” to reflect the deletion of the buyer’s credit if a PCDS was not provided.
Unless one of the statutory exemptions excuses the need for one, with the elimination of the Opt-Out safe harbor for sellers, we recommend each party consult with counsel as to their rights and remedies if no PCDS is provided.
If you would like to schedule a consultation to talk about your rights when encountering this type of situation, either as a buyer or seller, please feel free to contact Lou at email@example.com or give him a call at 585-512-3534.
Lou Morin is recognized as one of the preeminent attorneys in Western New York for real estate law and bankruptcy matters. A frequent guest lecturer for bar associations and realtor groups, Lou has also served on committees which have revised and improved the standard forms used by realtors and attorneys for residential real estate transactions. Lou also maintains an active bankruptcy and business workout practice.
This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.
McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979. With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.
We represent a diverse range of clients located throughout New York State and New England. They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts. For more information, please contact us at 585.546.2500.