Duty to Disclose

Buying property? Wonder what the obligation on the Seller is to disclose?

When buying property, the rule of thumb is caveat emptor or buyer beware.

For this reason many Buyers obtain a home inspection. However, a home inspection may be a double edge sword, as it can negate potential title insurance claims.

The Seller has a duty to disclose latent defects or defects that are not readily observable. Observable defects are generally referred to as 'patent' defects. The problem here is that Sellers disputing the cliaim often claim that they were 'unaware' of the defect. This may permit them to escape liability. It is difficult to establish what they did or did not know.

For practical reasons this relegates many to investing in the fix rather than in a law suit.

The failure to disclose a latent defect may entitle a Buyer to collapse a transaction, have it set aside or damages. Please consult a lawyer with respect to your specific situation.

The Property Condition Disclosure Statements that are often included in transactions are somewhat helpful, in that they at least provide some record of the representations made with respect to the property. The MLS listing or web site advertisement, if bought privately, is also very helpful. Lastly, if you are relying on some specific representation, e.g. the ability to build a garage on the property or that the jacuzzi tub works, then make it a term of the contract.

Your lawyer or realtor will be helpful in this regard.