Q. I heard the RPOADS form is changing?
A. On March 15, 2023, the Commission began accepting public comments on proposed changes to the rule that includes the Residential Property and Owners’ Association Disclosure Statement (RPOADS), 21 NCAC 58A .0114. If this rulemaking proposal is adopted by the Commission and Rules Review Commission, the changes will become effective July 1, 2023. In order to receive updates regarding rulemaking, subscribe to the Commission’s mailing list.
Q. So what is changing and why?
A. The biggest change would be moving the RPOADS form out of the rule. Right now, the form is embedded in the rule, and it is difficult, if not impossible to make even the simplest formatting or appearance changes, or even clarify the instructions, without going through the rulemaking process. Moving the form out of the rule will allow those more technical changes to be done easily and will allow the form to receive an updated appearance so that it is a little more user friendly for brokers and consumers. When you look at the rule, you will see the form is marked out. Under the rulemaking proposal, it’s not being eliminated! It’s just coming out of the rule.
Q. Would the Commission add new topics to the form without rulemaking?
A. No. The topics covered in the disclosure must be itemized in either the Residential Property Disclosure Act (N.C.G.S. 47E) (“the law”), or the rule (21 NCAC 58A .0114), and those topics cannot be changed without going through the full rulemaking process. Note that the rule only itemizes the topics not contained in the law, so you have to look at both the law and the rule to see all of the required topics.
Q. What questions are proposed to be added to the form, and why?
A. The Commission is considering adding questions based on public comments received from brokers, attorneys, and others. For example, whether or not any private well has been tested and, if so, when and whether or not a property is in a historic district. Elevators are being covered as well, after the passage of Weston’s Law last year. As a result of federal discussions regarding a mandatory national flood disclosure and a petition filed for rulemaking regarding flood questions, the Commission is considering adding 5 questions related to flooding. A couple of existing questions are also being edited or clarified.
Q. Will brokers still have input in changes to the form that don’t require rulemaking?
A. Absolutely. Any substantial change to the topics require the rule to undergo the rulemaking process or a legislative change. The Commission also adopted internal policies and procedures that require any minor change to be published for at least 30 days on its homepage to allow for written comments before the Commission makes final changes. These suggested changes will be published in the Bulletin as well.
Q. Does this change a broker’s duty?
A. No. A broker’s duty is not changing at all. In fact, the Commission is hoping to make it clearer to sellers that even if they check ‘No Representation’ a broker still has a duty to discover and disclose material facts about the property. That standard has not changed.