The Oregon Seller Property Disclosure law seems to be treated differently than some other states. For example, in some states, any seller addition to the Seller’s Property Disclosure triggers a new 5-day right of rescission. In Oregon, if there is a subsequent disclosure, is another 5-day right of rescission triggered?

Oregon’s seller property disclosure law does not specify whether if a seller sends a new, updated SPDS a new 5 business day right of revocation is triggered.  If Buyer was put in this position, Buyer certainly could argue “yes” and we think that buyer would have a strong argument in doing so.  But the reality is that there is no case law on this issue.  Any disputes over this issue are being resolved in small claims court or in mediation or arbitration and these cases are unreported and have no precedential value, so we cannot say definitively.

Regardless of whether the 5-day statutory right of revocation exists, if a seller reveals a previously undisclosed material defect related to the property, the buyer would be able to terminate the contract and retain earnest money because in the contract the seller had stated that there are no known material defects related to the property other than those contained in the SPDS, the contract, or another writing and the seller has an ongoing duty to disclose material defects.  The disclosure of the previously undisclosed material defect would be a material change to the bargain agreed to by the buyer and seller (the defect would render the property less valuable) and based on the material change the buyer would be able to terminate and retain earnest money.  Of course, the defect would have to be material (that is, likely to effect the willingness of a typical buyer to purchase the property or the price that they would pay for the property), and it would have to be something that was not already discovered by the buyer for which the buyer had an independent right to terminate (for example, seller revealing a defect that buyer already discovered in buyer’s inspection when buyer had a 10 day right to terminate would likely not give buyer an independent right to terminate, because buyer would be deemed to have already been aware of and accepted that condition of the property).