Thought Leadership

Ohio Supreme Court Clarifies Sellers’ Disclosure Obligations: No Duty to Disclose Publicly Recorded Easements
Ashmus v. Coughlin, 2025-Ohio-2412

The Ohio Supreme Court has ruled that sellers are not required to disclose publicly recorded easements, reaffirming the limits of disclosure duties in real estate transactions. The court held that a working sewer line and its corresponding recorded easement do not constitute a “defect” under the state’s disclosure laws and that sellers are not obligated to anticipate a buyer’s specific intended use of a property. 

In Ashmus v. Coughlin, the buyer planned to raze the seller’s lakeside lot and build a new home. The purchase contract included a 14-day due diligence period. If no issues were raised, then the property sold as-is. The purchase agreement’s disclosure statement did not specifically request information about easements, but it included a catch-all section where anything could be disclosed that “could inhibit a person’s use of the property.” The seller did not disclose a sewer easement. When the buyer found out about the sewer line, they backed out of the deal. The seller sued for the lost contract value, and the buyer countersued for non-disclosure. 

The Ohio Supreme Court considered whether a recorded sewer easement constitutes a defect that must be disclosed and whether the disclosure is limited to physical conditions that could inhibit a person’s use of the property based on its current use, or whether the disclosure must consider the buyer’s planned future use.

The court determined that a working sewer line and a recorded easement do not constitute a defect according to the ordinary use of the term “defect.” Second, the court determined that because the disclosure form referred to “a person” as opposed to “the person,” the seller was not required to anticipate how a particular buyer would use the property and modify their disclosures to reflect pertinent concerns. The court restated that the standard for the disclosure is whether the condition would interfere with an “ordinary buyer’s use of the property.” 

Sellers and their realtors should take solace in relying on recorded easements and fully operational utilities in fraudulent nondisclosure cases. 

In dicta, the Ohio Supreme Court reminded practitioners, “Where an ‘as is’ clause exists in an agreement, there is no duty to disclose even latent defects. (***) For that reason alone, there was no common-law duty of disclosure (in this matter).” 

^{Legal Update for Real Estate E&O – November 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}