THIS ARTICLE FROM APRIL 2013 IS RE-POSTED BY PERMISSION OF THE AUTHOR.
Attorney Darren Welsh, Esq. April 24, 2013
Darren Welsh Blog – Berkshire Hathaway HomeServices, Nevada Properties
Waiving Your Rights in a Residential Sale in Nevada
The Nevada Seller’s Real Property Disclosure Form (SRPD) has changed effective March 8, 2013. The changes clarify the section warning “purchaser may not waive the requirement to provide this form and a seller may not require a purchaser to waive this form,” per NRS 113.130(3) removing the former citation of the Senate Bill 34 (3) / Senate Bill 314. It kept the “type of seller” can be selected from a Bank, an Asset Management Company, Owner-Occupied, or Other.”
I want to take this time to address Waiver of Rights in a Nevada residential real estate transaction, specifically the Buyer’s Waiver of Remedy under of NRS 113.150.
The issue is that even though a seller may not require a purchaser to waive the receipt of the SRPD per NRS 113.130(3), a buyer may waive any of her rights as to remedies under NRS 113.150. Section 150 is where the Buyer finds their remedies for a non-disclosure.
Although the law says the Seller cannot force a Buyer to waive the right to receipt, if the Seller does not provide the SRPD, the transaction may still close. More importantly, a Seller can simply avoid the subject of not providing the form and focus on getting the Buyer to waive the remedies of the non-performance by a Seller.
As described in the form Buyer’s Remedy Waiver of NRS 113.150 Rights: The Buyer may waive their right to:
- rescind the purchase pursuant to NRS 113.150(1) This means although the buyer cannot be forced to waive the right to receive the SRPD form, they can waive their right to cancel the transaction because they did not receive the form. This waiver is the least potentially damaging to a buyer. If a seller is “demanding” as a contingency that this form be signed, number 1 is the safest for a buyer to check. The reason is that a buyer can still conduct their own inspection and find a defect and cancel the transaction per NRS 113.150(2), subject to the terms of the purchase agreement.
- rescind the purchase agreement pursuant to NRS 113.150(2)(a) This means although the buyer cannot be forced to waive the right to receive the SRPD form, they can waive their right to cancel the transaction even if they are informed of a new defect during escrow. Remember NRS 113.150(2) is when…before the conveyance of the property to the purchaser a seller informs the purchaser of a defect in the property of which the cost of repair or replacement was not limited by provisions in the agreement to purchase the property… This is potentially more damaging to a Buyer. As described above, checking number 1 on the Buyer’s Waiver of Remedy form still allows the Buyer the chance to cancel if they are informed of a new defect. By waiving this right in #2, the Buyer is potentially not able to cancel the transaction without penalty even if the Seller discloses a new material defect during escrow.
- recover from the Seller three times the amount necessary to repair or replace any defect per NRS 113.150(4). This means although the buyer cannot be forced to waive the right to receive the SRPD form, they can waive their right to collect treble damages. This waiver is powerful. It eliminates the Buyer’s ability to pursue treble damages as described in my March 2012 entry, Disclosure In Real Estate Sales, As Is, NRS 113, Treble Damages, basically nullifying the clarification the Nevada Supreme Court describes in Webb v. Shull. If a seller is “demanding” as a contingency that this form be signed, number 1 is the safest for a buyer, number 2 the next safest, number 3 is highly suspect. Arguably a seller could not disclose, perhaps even intentionally, and not be held liable.
- All of my legal rights under NRS 113.150. This means although the buyer cannot be forced to waive the right to receive the SRPD form, they can waive their right to cancel the transaction because they did not receive the form; they can waive their right to cancel the transaction even if they are informed of a new defect during escrow and they can waive their right to collect treble damages.
Permission was granted to re-post this blog by Darren Welsh, Esq. on July 17, 2020. Mr. Welsh stated the information contained in his article is “still the law.”