North Dakota's new disclosure safe harbor points at the definitions subsection
North Dakota's new disclosure safe harbor points at the definitions subsection
2026-09-15 · North Dakota · Legislation
North Dakota's new resale disclosure statute gives sellers a safe harbor, and the safe harbor points at the wrong place. N.D.C.C. § 47-10-02.3(4) reads, in full:
“A seller or seller's agent complying with this section is not liable for any claim or action based on the disclosed information under subsection 1.”
Subsection 1 is the definitions subsection. It defines “condominium,” “condominium project” and “homeowners' association,” and it requires no disclosure of anything. The fifteen-item disclosure package is in subsection 2.1
This is in the enrolled bill, not just the code
It would be easy to assume a codification slip. It is not. The cross-reference reads the same way in the enrolled text of Senate Bill 2229 as passed and signed — Senate 44-2, House 87-4, signed March 18, 2025 — and in the codified Century Code section that took effect August 1, 2025.2 Both documents say “subsection 1.”
Why it is not academic
Subsection 4 is the only liability protection in the statute. Everything else in § 47-10-02.3 creates duties: the seller's duty to disclose fifteen categories of information within ten days, the association's duty to furnish them within ten days of a request, and the buyer's right to void the contract until they arrive. Subsection 4 is the sentence that tells a seller what they get for doing it right.
The two readings, and what each costs
A North Dakota court confronting the provision has two plausible routes.
The literal reading leaves the safe harbor empty. Nothing is disclosed under subsection 1, so nothing falls inside the protection. A seller who assembled the full packet, produced it on time, and disclosed exactly what the statute asked would have no statutory immunity for any of it. The protection would be real only in the sense that it protects a null set.
The scrivener's-error reading treats “subsection 1” as meaning subsection 2. North Dakota courts read statutes to give effect to legislative intent and will not read a provision so as to render it meaningless where another reading is available. That is the likelier outcome, and it is what most practitioners will assume. But “likelier” is not the same as settled, and no North Dakota court has construed § 47-10-02.3 at all — the state's Supreme Court has not decided a single community-association case since June 2025.
What it means for a seller and an association
Do not rely on subsection 4 as the reason you are covered. A seller's real protection is an accurate, complete, documented disclosure — not the sentence promising immunity. Keep the transmittal record: what was sent, when, and what the association supplied versus what the seller wrote.
No safe harbor was written for boards at all. Subsection 4 protects “a seller or seller's agent.” The association is not named in it. The ten-day furnishing duty in subsection 5 has no corresponding protection for an association that produces documents in good faith and gets a figure wrong — and subsection 6 makes an understated arrears figure binding against the association, not the buyer.
Say where each number came from. Where an association supplies a figure and the seller passes it through, both parties are better off if the packet shows which is which. If the safe harbor is read literally, provenance is the only thing separating the two roles.
Whether it gets fixed, and when
North Dakota's Legislative Assembly meets in odd-numbered years. The 70th Assembly convenes January 5, 2027, and the deadline for legislators to prefile bills is December 18, 2026.3 A one-word corrective amendment is exactly the kind of technical fix that moves quietly through a session, and the window to file it is open now.
Nothing in the 2025-26 interim study list touches homeowners associations, so a correction would have to originate with a legislator or an agency rather than emerge from an interim committee bill draft. Until then, the safe harbor says what it says.
What to watch next
Watch the 2027 bill list between now and the December 18, 2026 prefiling deadline for any amendment to § 47-10-02.3. Watch also for the first reported North Dakota decision applying the section — the construction of subsection 4 is the sort of question that gets settled the first time a seller is sued over a disclosed figure, and not before.
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