Disclosure of Cremains Disposed of in Backyard Not Required
The primary purpose of the NRS 113 Seller’s Real Property Disclosure (the “SRPD”) form is to ensure transparency and protect buyers by requiring sellers to disclose all known “defects” that materially and adversely affect the value or use of a residential property. This document shifts the burden of discovery from the buyer to the seller for known issues, effectively moving away from the “Buyer Beware” (caveat emptor) philosophy. However, determining what is “material” is not always as straightforward as you may think.
Informed Decision making
The SRPD provides buyers with an honest account of the property’s physical condition so they can make educated purchasing decisions. It uses a standard questionnaire provided by the Nevada Real Estate Division to cover major systems, environmental issues, and structural integrity. When completed accurately, it acts as a record of disclosure that can protect sellers from future claims of fraud or concealment. Agents should be aware that the standard of care requires your review of the SRPD.
What must be disclosed?
The form specifically targets “defects,” defined as conditions that have a material adverse effect on the property. The SRPD is a disclosure of known conditions and is not a warranty. Remember, listing a property for sale “as is” does not exempt the seller from the disclosure requirements. Buyers are still encouraged to perform their own professional inspections. In general, events that don’t affect the physical structure but might impact a buyer’s desire to live there – are generally not considered material and do not require disclosure on the SRPD.
What is not required to be disclosed?
The Nevada Revised Statutes provide that the fact there was a death on the property (whether by natural causes, suicide or homicide) is not material. Moreover, the fact that a previous occupant was infected with HIV or any other disease need not be disclosed.
When Disclosure becomes mandatory
If a buyer or their agent aka direct question (for example, did someone die on the property), the seller and his/her agent can’t conceal the answer. In addition, if the stigma is tied to a physical defect – for example, a construction defect, lead paint or asbestos – then the death and its cause must be disclosed.
Can cremains be stored or disposed of in a backyard?
In Nevada, the disposal of cremated remains is governed by NRS 451.700 and NRS 451.695, which allow scattering at sea/waterways, in dedicated cemetery areas, or on private property with written consent. Remains must be reduced to particles smaller than 1/8 inch for scattering. If someone scattered or buried cremated remains in the backyard, that generally does not create a defect in the land, nor does it typically impair use or value in an objectively measurable way. It would likely be viewed as a non-material psychological stigma, similar to a death on the property. However, it is always possible, although unlikely, the disposal violated local law/HOA rules.
Transparency is generally the best approach
While the seller is likely under no statutory duty to disclose if ashes were scatters or privately buried and no physical condition remains, it may still be best to make a voluntary disclosure. This is particularly the case if the deceased person was notorious. Materiality is judged by whether a reasonable person would consider the information important. Disclosure will ensure that a buyer is unsuccessful if he or she tries to rescind the transaction after the close of escrow or intends to file a lawsuit for fraudulent concealment. Remember, if the neighbors are aware of the disposal of the ashes, the “pros” of disclosure usually outweigh the “cons”.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created, and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
Lee A. Drizin, Esq. is the founder of Drizin Law and has practiced in Las Vegas for over three decades. His work focuses on probate, estate planning, trusts, and guardianship, with particular experience handling contested probate and administration matters. A UNLV graduate with a Master of Laws in Taxation from Boston University, Lee has built his career helping Nevada families navigate some of the most difficult times in their lives.
