Better confess about that unconsented deck

When you've lived in a property for a while it's easy to forget some of its quirks. You might be used to the fact that the front gate doesn't shut properly, or that the bathroom windows need fixing.

Potential buyers will be able to spot issues such as these when they inspect the property — and they can choose to fix them if they buy it. But it's harder for them to identify other things you might have forgotten about, such as not bothering to get consent when you built the deck 25 years ago.

You might think the deck is fine, but you need to front up about the consent issue, not least because it's the decent thing to do.

"When you're selling a property you are legally obliged to share all the relevant information about it," says Kevin Lampen-Smith, CEO of the Real Estate Agents Authority (REAA).

"If work has been done on the property during your ownership ... the standard terms of the sale and purchase agreement require the seller to warrant that any legally required permits or consents were obtained.

"If you knowingly fail to disclose unconsented works, you are in breach of contract. This means there is a risk that the sale could fall over or that you could run into problems prior to settlement. Even worse, the buyer could take you to court for breach of warranty."

Your first step should be to discuss the issue with your licensed real estate agent and your lawyer, says Lampen-Smith. They are likely to advise that you are better off to disclose anything unconsented, or to strike out the applicable vendor warranties clause in the sale and purchase agreement.

"Once the real estate agent is aware of the situation, they are bound by their Code of Conduct to disclose it to any prospective buyers. If you tell them about any other issues to do with the property, but ask them not to tell anyone, they are required to stop working for you."

Some sellers worry about whether to tell an agent or prospective buyers about an issue that doesn't relate to the physical state of the property — such as it being the scene of a murder, suicide or violent crime.

"If you are in this situation as a seller, it's best to discuss what to do with your real estate agent," says Lampen-Smith.

"They cannot tell prospective buyers without your consent — and if they decide that a sensitive issue should be disclosed but you don't agree, they must cease to act for you."

Whatever the situation, whether it's unconsented work or a tragic event, honesty is the best policy. For independent advice, check out reaa.govt.nz.