Failure to Disclose: Should Buyers Sue Sellers for Not Revealing Problems

Can a buyer sue a seller for failure to disclose information about the house? 

As a buyer, you deserve to know about every problem with the house, from the leaky roof to the small colony of black mold hiding in the cabinet in the laundry room. 

If the seller fails to disclose a problem to you during the property transfer process, should you start calling lawyers, or can you settle this issue yourself outside of a courtroom? It all depends on the real estate disclosure laws in your state and how far along in the purchase process you are.

Real estate disclosure laws
Real estate disclosure laws differ from state to state, but in most places in the U.S., sellers are required to disclose info to a prospective buyer that could affect the property value. That could be anything from a termite infestation to a property line dispute with a neighbor. If your house was built before 1978 and has lead paint, federal law requires this to be disclosed as well.

Sellers must volunteer information about their property to the buyer; it's not enough to just wait for a buyer to ask a question and answer honestly, according to California real estate attorney Bryan Zuetel of Irvine, CA. In many states, that information is shared through a disclosure form, where a homeowner outlines details about the house. That form will include negative information as well as basic facts such as the square footage.

Sellers do not have to disclose something that they don't know about. But if it can be proven that something was known and omitted, a seller can get in big trouble.

"A seller may be liable to the buyer for the nondisclosure of material facts, negligent misrepresentation of facts, intentional misrepresentation of facts, or suppression or concealment of facts," Zuetel explains.

Should you sue a seller for failure to disclose before the sale?
If the seller fails to disclose information about the house but you haven't yet signed on the dotted line, you may be able to cancel the purchase. Canceling the purchase could be a lot less costly and time-consuming than suing the seller.

Laws in most states guarantee a buyer the right to cancel a transaction due to discovery of certain facts during the transaction. In California, for example, Zuetel says a buyer may terminate a transaction within a certain number of days after receiving a disclosure regarding natural hazard zones around the property.

Most real estate attorneys recommend including contingencies in the residential purchase agreement that will give buyers an out, and require any money held in escrow be returned to them (pending a review of the disclosures and the property). If your contract has this contingency in place, you should be able to cancel the transaction and walk away without losing anything but your time.

Should you sue a seller for failure to disclose after the sale?
Things get more complicated if you buy the property. That's when you may land in a courtroom, but a lawsuit could still be avoided, says Zuetel.

"The dissatisfied buyer can contact the seller to determine whether the parties can work out an agreement or settlement of the issues," he notes.

In fact, some purchase contracts will contain a provision that the buyer and seller must try mediation before the filing of a lawsuit, while other purchase contracts will require that disputes between the buyer and seller must be arbitrated, rather than litigated in court.

If you do end up suing the seller, you could seek monetary damages for the seller's failure to disclose information or misrepresentation of the property. The amount you sue for can include damages for the difference between the amount that the buyer paid and the fair market value of the property at the time of the sale, Zuetel says.

3 reasons sellers shouldn't fear disclosures

There is no reason for sellers to stress about accurately and completely filling out disclosure statements

To disclose or not to disclose — that is the question. Actually, that isn’t the question. 

There should be no question in a seller’s mind whether to disclose an item or not. The short answer: If you’re aware of an issue, disclose it.

But first let’s talk about what exactly a disclosure is, and why, as a seller, it can be your best friend.

What is a disclosure?

A disclosure, in terms of real estate, is an opportunity for a seller to legally communicate any known property issues to prospective buyers.

Makes sense, right? A prospective buyer is ponying up some serious cash to buy a new home, and knowing its history and issues plays a key role in the selection process.

No pain, all gain?

Historically speaking, disclosing property flaws has been viewed by sellers as a pain point. (No surprise there.) Telling prospective buyers all the individual items “wrong” with a property goes against the natural inclination to display the property in the best light.

However, rather than view the disclosure process as an unpleasant task, sellers should eventually come to embrace the process.

Here are three reasons why there’s no need to be afraid to disclose your heart out.

1. Avoid potential legal action

Disclosure documents are a seller’s opportunity to tell all and paint an accurate picture of the property for sale. They also are a vehicle to protect yourself legally from any issues that may arise down the road. The more thorough the information, the better your protection.

Julie Sears, a recent seller in the Seattle market, experienced this firsthand. After accurately disclosing a leaky window in the living room and agreeing to a price reduction, she was surprised to be contacted by her broker after closing.

“The new homeowner was upset about water damage from a recent heavy thunderstorm and was seeking compensation for repairs,” says Sears. “Since I had disclosed the issue upfront, I was protected from any legal action regardless of the subsequent damage.”

This is a perfect example of the legal protection a seller can expect when accurately disclosing issues.

2. Give a sense of security

A disclosure statement that is barely filled in sends a message to the buyer — and it’s not reassuring: the seller is either uninformed about the property or unwilling to provide information.

Make it a point to sit down and thoroughly fill out your disclosure statement. Use this opportunity to convey your knowledge about the property to the buyer.

Accurate information provides the buyer a sense of security and demonstrates that you are upfront and thorough.

“Remember that no property is completely perfect. Revealing your property’s potential flaws will not drive away every potential buyer. The disclosure statement simply allows you to enter fair negotiations with buyers,” says FSSK, a Minneapolis law firm that specializes in real estate.

Disclosing flaws places them squarely on the table, allowing both parties to either work through them together or walk away. Whichever occurs, it gets you one step closer to finding a buyer and closing the deal.

3. Gain commitment

Closing a home purchase transaction is rife with small hurdles. Clearing each one is a victory as you proceed through escrow and nearer to the closing date.

Deliver your disclosure statement early in the process — preferably when you return a copy of the executed contract to the buyer. Overcoming this hurdle early places you that much closer to concluding a successful transaction.

If the buyer will not sign off on the disclosures and would like to terminate the agreement, it’s best to know this early so you both can move on.

Let’s be honest: all properties have flaws. But if you can embrace the process and work with prospective buyers to fairly negotiate, you’ll be able to close the deal more quickly and protect yourself from future headaches.

Both you and your karma will be glad you did.

Five things to know about a home before committing to buy

Your due diligence inspections should include more than hiring a home inspector to look at the home and reviewing a current termite inspection. And your due diligence should start as soon as you have serious interest in a listing.

Making an offer to purchase a home consumes a lot of time and emotional energy. Before your real estate agent or attorney puts pen to paper, find out as much about the property as you can. In particular, you want to know if there's any reason you shouldn't try to buy the house.

Seller disclosure requirements vary from state to state, as does real estate practice and protocol. Find out if there are any seller disclosure statements and presale inspection reports. If there are, ask to see copies before you write an offer.

In some areas, it is standard procedure for listing agents to provide a disclosure package that includes any existing reports and disclosures to interested buyers before they make an offer. In other areas, reports are made available only after the buyer and sellers have negotiated the purchase agreement. Get ahold of as much information as you can about the physical condition of the property as soon as possible.

After you review the seller's documents on the property, you may discover that the home you find so appealing requires a far bigger investment in repair work than you can handle or afford financially. In this case, move on to the next property with no remorse. You've saved yourself from hassle and heartbreak.

On the other hand, if the reports and disclosures fall within your expectations, move on to investigating the local neighborhood. On closer look, you may discover that there are several large apartment buildings that back up to the house you're interested in buying. This might create a noise factor. If you're sensitive to noise, you might not be happy living in the property you're considering.

Buyers sensitive to crime should check with the local police department to see if the neighborhood is being hit by waves of break-ins. Drive by the property several times during daylight and evening hours to see if the complexion of the neighborhood changes in any way that is disadvantageous to you.

Commuters should drive from the property to work and back during rush hour, and check into all the public transportation options that are available in close proximity. If you're intent on buying within walking distance to shops and cafés, find out how long it takes to get from the house you think you want to the nearest commercial area.

HOUSE HUNTING TIP: It's wise to include an inspection contingency in your purchase offer so that you have a time period to complete whatever inspections of the property you deem necessary before committing to move forward with the purchase. This is recommended even if the seller has completed presale inspections. 

Some buyers who have confidence in the seller's home inspector hire that inspector to do a walk-through inspection with them so that the inspector can explain his report and answer any questions. The fee for this sort of inspection will usually be less than what the seller paid for the initial inspection and written report.

Don't skip inspections to save money. It could cost you plenty in the long run if uninspected items turn out to be faulty and you have to pay to repair them. 

Order a home inspection as soon as possible after your offer is accepted by the sellers. Most home inspections include recommendations for further inspections. If you don't have the home inspection done early, you may not have enough time to complete all the further recommendations recommended, like roof or drainage inspections.
THE CLOSING: If you run out of time, ask the sellers for an extension.