This is one of those real estate questions where you can ask five people and somehow get six answers.
“Yes, sellers have to fill one out.”
“Nope, buyer beware. Sellers don't have to disclose anything.”
Both answers are usually delivered with impressive confidence, which unfortunately has never been a reliable indicator that something is actually true.
The real answer sits somewhere in the middle. The Residential Property Disclosure Statement, or RPDS, is not legally mandatory for every residential sale in New Brunswick. A seller can choose not to complete one. But before anybody gets too excited and interprets that as “excellent, I don't have to tell anyone anything,” there are some fairly important details worth understanding.
THE FORM ISN'T MANDATORY, BUT THAT'S NOT THE WHOLE ANSWER
New Brunswick's standard Agreement of Purchase and Sale specifically recognizes that a seller may or may not provide a current RPDS. Clause 10 gives the seller the option of indicating whether they WILL or WILL NOT provide one as part of the transaction.
I didn't want to rely on the usual real estate version of legal research, which is basically “I'm pretty sure somebody told me this once,” so before writing this I spoke directly with the Director of Education at the New Brunswick Real Estate Association. The answer was exactly what I suspected: the RPDS itself isn't mandatory.
The guidance to agents, however, is pretty straightforward. DISCLOSE, DISCLOSE, DISCLOSE!
Sellers should be encouraged to disclose what they actually know, answer honestly, and where they genuinely don't know the answer to something, say so rather than guess.
So if somebody tells you every seller in New Brunswick is legally required to complete an RPDS, that's not accurate. But choosing not to complete the form does not magically exempt a seller from the laws surrounding misrepresentation, concealment or certain known defects.
The form is optional. Honesty isn't.
NEW BRUNSWICK IS STILL A BUYER BEWARE PROVINCE, MOSTLY
New Brunswick generally operates under the common-law principle of caveat emptor, which is Latin for “buyer beware.” Apparently unpleasant legal concepts sound considerably more civilized if you say them in Latin.
The basic principle is that buyers are responsible for doing their own due diligence. They're expected to inspect the property, ask questions and satisfy themselves with what they're buying. Sellers generally aren't required to point out defects that are plainly visible and reasonably discoverable by the buyer.
Those are known as patent defects.
A visibly cracked window, an obviously tired roof, damaged siding, or a deck that moves enough under your feet to make you suddenly rediscover religion are examples of things a buyer can reasonably observe. You've got eyes. Your home inspector, hopefully, has better ones. Caveat emptor generally puts the responsibility on the buyer to identify those types of problems before buying. Things become considerably more interesting when the problem isn't something you can reasonably see.
LATENT DEFECTS ARE WHERE THINGS CHANGE
A latent defect is a defect that wouldn't ordinarily be discovered during a reasonable inspection. It's the stuff hiding behind walls, underneath floors, inside systems or somewhere else a buyer couldn't reasonably be expected to find during the normal buying process.
This is where the seller's actual knowledge becomes important.
A good New Brunswick example is Duplessis v. Harrison. The buyers purchased a four-unit apartment building and later discovered extensive wood rot underneath it. The court found that the seller knew about the rot before the sale and that it was a substantial latent defect that should have been disclosed. The seller ended up responsible for the repair costs. That's a pretty important distinction.
There is a large difference between:
A seller genuinely not knowing a hidden problem exists.
A seller knowing about a serious hidden problem and saying nothing.
A seller actively doing something to prevent the buyer from discovering it.
Those are not the same situation legally, even though somebody somewhere will inevitably reduce all three of them to “buyer beware.” So no, declining to complete an RPDS does not create some magical force field around everything the seller already knows.
YOU STILL CAN'T ACTIVELY HIDE A PROBLEM
There's another line sellers really don't want to cross, and that's actively concealing something. Painting over a water stain without addressing the leak, covering a significant crack specifically so buyers won't see it, closing a wall over known mould or taking some other deliberate step to prevent a buyer from discovering a problem is very different from simply failing to volunteer information.
Drywall is not a legal strategy.
Neither is paint.
If you're deliberately trying to prevent someone from discovering a defect you already know exists, you're moving away from a simple disclosure question and toward active concealment or potentially fraud. That's a much uglier conversation to have after closing.
IF A BUYER ASKS A DIRECT QUESTION, ANSWER TRUTHFULLY
Let's say the seller declines to complete an RPDS. Fine. They're entitled to do that. Then the buyer's agent sends a written question asking, “Has the basement ever flooded?” The seller knows it flooded twice in the last four years.
At that point, “No” isn't one of the available answers.
Once a seller makes a representation, whether that's on an RPDS, in an email, through their REALTOR® or in another written response, a buyer may rely on that representation. If the answer is knowingly false or misleading, the fact that the seller declined to complete an RPDS isn't going to make the false statement disappear.
Choosing not to fill out the form gets you out of filling out that particular form. It doesn't give you permission to make things up afterward. I wish that distinction didn't need explaining, but real estate has taught me never to underestimate the creative interpretation of a simple sentence.
AND IF YOU DO COMPLETE ONE, ANSWER IT PROPERLY
The RPDS is not a home inspection. It isn't a warranty that nothing will ever go wrong with the house, and it certainly isn't a certificate declaring the property perfect until the end of time. It's a disclosure of what the seller actually knows about the property at the time they complete it.
Nothing more mystical than that.
If you know there was a problem, say so. If it was repaired, say that too. If you've got invoices, receipts, warranties, reports or documentation showing what was done, provide them. “Here's the invoice from the contractor who repaired it” carries considerably more weight than “Don't worry, Bob looked after it.”
If you don't genuinely know the answer to something, say “unknown.” That's not avoiding the question. It's answering it accurately. What I don't want sellers doing is staring at a question for ten minutes trying to engineer the least damaging possible version of a yes, or guessing because they think every box needs a confident answer. An honest “I don't know” is considerably safer than a confident answer somebody pulled out of thin air because an empty box made them nervous.
A CLEAN RPDS DOESN'T MEAN A PERFECT HOUSE
This works both ways. Buyers shouldn't receive an RPDS with every box neatly completed and decide they can skip their own due diligence. The disclosure statement tells you what the seller knows. A home inspection is intended to help identify the things the seller may not know.
Those are two completely different jobs.
If a defect exists but the seller genuinely had no knowledge of it, the mere existence of the problem doesn't automatically mean the seller misrepresented anything. That's very different from Duplessis, where the court found the seller actually knew about the hidden rot.
This is exactly why I don't treat an RPDS as a substitute for a home inspection, and neither should a buyer. One tells you what the seller knows. The other helps you figure out what's actually there.
REFUSING AN RPDS ISN'T AUTOMATICALLY A RED FLAG
I also wouldn't automatically assume a seller is hiding something simply because they decline to complete an RPDS. There are plenty of legitimate situations where the seller may know very little about the property. An estate may be selling a house where the people handling the sale never lived there. A landlord may have owned a rental for years without ever occupying it. An investor may simply not know the detailed history of every system in the building. In those situations, a disclosure statement could end up containing more “unknown” answers than useful information anyway.
So “seller will not provide an RPDS” doesn't automatically mean there's a body buried under the shed.
But if I'm representing the buyer, it does mean I'm probably asking more questions, not fewer.
THE AGREEMENT OF PURCHASE AND SALE CAN CHANGE THIS
Here's another part that's easy to overlook. The province may not require a seller to provide an RPDS, but the contract can. Clause 10 of the standard New Brunswick Agreement of Purchase and Sale allows the seller to indicate whether they WILL or WILL NOT provide a current RPDS, and if they agree to provide one, the contract establishes a deadline for doing it. Once the seller checks WILL and signs the agreement, “the province doesn't require me to provide one” isn't particularly helpful anymore.
You signed a contract saying you would.
Nobody forced the obligation on you. You volunteered for it, put it in writing and attached a deadline to it. Contracts have an annoying habit of remembering those things. The clause also gives the buyer an opportunity to review the disclosure statement and, depending on the wording and deadlines in the agreement, terminate if they aren't satisfied with what they receive. That's why I don't treat Clause 10 like some meaningless checkbox everyone blows past on the way to the purchase price.
Words in contracts occasionally matter. Who knew?
REALTORS® HAVE THEIR OWN OBLIGATIONS
This is another important piece because a seller's obligations and a REALTOR®'s professional obligations aren't necessarily identical.
CREA's REALTOR® Code requires REALTORS® to make reasonable efforts to discover facts about a property that a prudent REALTOR® would discover in order to avoid error or misrepresentation. It also specifically says a REALTOR® shall not be party to an agreement intended to conceal facts pertaining to a property.
So if a seller tells their agent, “The basement floods every spring, but I'm not filling out the disclosure statement, so don't tell anybody,” that isn't where the REALTOR® says, “Brilliant. You've cracked the code.”
There isn't a code.
That's where the agent's own professional obligations kick in. Depending on the circumstances, the managing broker needs to become involved and the seller may need legal advice about what must be disclosed. Representing your client's interests is part of the job. Helping somebody conceal or misrepresent their property most definitely isn't.
WHAT I ACTUALLY TELL MY SELLERS
Every property is different, but the basic advice isn't terribly complicated: answer based on what you genuinely know, disclose things honestly and don't guess simply because you think the paperwork looks better with every box filled in. If you've lived in the property for twenty or thirty years, you're naturally going to know considerably more about it than somebody selling an investment property they've never occupied. If you've never lived there, maybe it's a rental property, an estate or an investment, you're naturally going to have more unknowns. That's fine.
My general approach is:
If you know about an issue, disclose it.
If it was repaired, explain what was done.
If you have invoices, warranties, reports or receipts, provide them.
If a tenant previously reported a problem and you dealt with it, that's information you know.
If you genuinely don't know the answer, say “unknown.”
Don't guess in either direction just because you think one answer looks better than another.
The goal isn't to make the form look perfect. The goal is to make it accurate.
And if the answer starts getting complicated enough that we're debating legal liability rather than filling out a disclosure form, that's when I stop pretending to be a lawyer and tell you to speak with one. I already have enough paperwork in my own profession.
THE BOTTOM LINE
The Residential Property Disclosure Statement is not legally mandatory for every residential sale in New Brunswick. A seller can decline to complete one. What a seller can't safely do is treat that decision as permission to knowingly conceal a substantial latent defect, actively hide a problem or make a false statement when asked about the property. And buyers shouldn't treat an RPDS as proof that a house is problem-free either. It is one piece of the due diligence process, not a replacement for the rest of it.
The cleanest way I can put it is this: The form is optional. Honesty isn't.
If you're getting ready to list a property anywhere around Greater Moncton and you're not sure what belongs on the RPDS, what should be marked unknown or whether something needs to be disclosed at all, that's exactly the conversation worth having before the listing goes live, not after an offer is sitting on the kitchen table.
And when the answer starts touching actual legal liability, that's a conversation for your lawyer. Not Facebook, your neighbour or somebody's cousin who sold a house in 1997 and has apparently been practicing real estate law ever since.
Call or text 506-852-6477. No pressure, just straight answers.
Strong Roots - Smart Moves
Shane MacPherson, REALTOR®
eXp Realty
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