A failure to disclose is a situation in which a person or entity does not reveal relevant or significant information that they are legally or ethically required to share. This concept often comes into play in areas such as law, finance, and real estate.

The duty to disclose any material defects, particularly in real estate transactions, obligates the seller to inform the buyer about any known defects or issues related to the property. This obligation stems from the principle of full disclosure, which holds that all parties in a transaction should have access to all material facts.

If a seller knows about a material defect and doesn’t inform the buyer, it’s considered a failure to disclose. The result can be legal liability, including potential damages if the buyer can prove the lack of disclosure harmed them.

What Is a Material Defect?

A material defect is a specific issue with a property that could affect its value, usability, or safety. These are substantial problems, not minor or aesthetic issues, that can impact the property’s worth or the buyer’s decision to purchase.

Material defect examples might include:

  • Major structural issues like a damaged foundation.
  • Significant roof leaks that require extensive repairs.
  • Issues with the plumbing or electrical systems that render them unsafe or inoperable.
  • Presence of hazardous materials like asbestos or lead paint.
  • Land instability or risk of natural disasters like floods or landslides that directly impact the property.

Construction defects are typically considered material defects because they can affect the property’s structural integrity, safety, and value. For instance, if a home was built with a faulty foundation due to poor construction, this would be a material defect because it could lead to significant problems down the line, such as structural instability and substantial repair costs.

What Is the Duty of a Seller?

The duty of a seller primarily revolves around providing a clear, honest, and accurate representation of the product or property being sold. In the context of real estate, sellers have several key obligations:

  • Disclose material facts: The seller is required to disclose any known material defects or issues that could affect the property’s value or a buyer’s decision to purchase. This includes issues like structural defects, pest infestations, or a history of flooding.
  • Disclose legal issues: This refers to any legal issues tied to the property. It includes disclosing easements and zoning violations. Easements, which give others the right to use a part of the property in some way, can impact the property’s value and use.
    • Similarly, zoning violations, which occur when the property is being used in a way that violates local zoning laws, can lead to fines and legal issues.
  • Provide clear title: Sellers are required to provide a clear title to buyers, free from liens or other claims. In real estate, this involves working with a title company to ensure that there are no outstanding liens or ownership disputes over the property.
  • Honesty and good faith: Sellers are expected to act in good faith throughout the transaction process without misrepresentation or fraud.

What Is the Duty of the Buyer?

The buyer’s duties, though different from those of the seller, are also important in ensuring a smooth transaction. They include:

  • Due Diligence: Buyers have the duty to inspect the property and verify the information provided by the seller. Frequently, this includes getting a property inspection, checking public records, and confirming the property’s condition and value.
  • Securing Financing: If the buyer is not purchasing the property outright, they are responsible for securing their own financing. This often includes getting pre-approved for a mortgage, providing proof of funds, and following through on all loan requirements.
  • Honesty and Good Faith: Just like sellers, buyers are expected to act in good faith. This means being honest about their intentions and financial situation and not misrepresenting any information during the transaction.
  • Fulfilling Contractual Obligations: Once a purchase agreement is signed, buyers have a duty to fulfill their contractual obligations. This may include paying earnest money, meeting deadlines for inspections or financing, and closing the transaction as scheduled.

What Is the Duty of a Broker?

A broker, often referred to as a real estate broker, serves as an intermediary between buyers and sellers. The broker’s duties vary based on whether they’re representing the buyer, the seller, or both.

Here are some general duties of a broker:

  • Representation: A broker has a duty to represent their client’s interests. This includes advocating for their client’s needs, providing advice, and negotiating on their client’s behalf.
  • Confidentiality: Brokers have a duty to keep their client’s personal and financial information confidential unless required by law to disclose it or instructed by the client to do so.
  • Full Disclosure: Brokers are required to disclose all relevant and material information that could affect the transaction. For sellers, this could mean informing potential buyers about any known defects with the property. For buyers, this means informing them of any factors that could influence their decision to purchase, like market trends or potential zoning issues.
  • Accounting: Brokers are responsible for handling funds related to the real estate transaction, such as earnest money or deposits. They must account for all money they receive and ensure it is handled properly.
  • Due Diligence and Care: Brokers have a duty to exercise due diligence and reasonable care in performing their services. This means they must verify information, stay informed about market conditions, and perform their services competently.
  • Obey lawful instructions: Brokers must obey lawful instructions from their clients, provided these instructions are consistent with the agreement between the broker and the client and are in line with the law.
  • Non-discrimination: Brokers must comply with federal, state, and local laws and regulations, which include non-discrimination laws. They cannot discriminate against clients or potential clients based on factors such as race, religion, gender, disability, familial status, or national origin.

Tips for Sellers to Prevent a Dispute of Failure to Disclose

Here are some tips for sellers to prevent a dispute of failure to disclose:

  • Full Disclosure: To avoid potential legal issues, provide complete and accurate information about the property. This includes disclosing all known defects, issues, or concerns.
  • Pre-Listing Inspection: Conduct a thorough inspection of your property before listing it. This can help you identify any potential issues that you should address before selling or disclosing to potential buyers.
  • Documentation: Keep detailed records of all repairs, maintenance, inspections, and upgrades made on your property. This documentation will provide proof that you’ve taken good care of your property and can help back up your disclosures.
  • Honesty: Be honest in all of your interactions with potential buyers. Misrepresentation or deceit can lead to legal disputes and damage your reputation.
  • Use Professional Help: Working with experienced real estate agents or attorneys can help ensure that you’re following all necessary laws and regulations.

What Should I Do if I Have Discovered the Property Has a Material Defect?

Discovering a material defect in a property can be a distressing experience, but it’s crucial to take prompt and appropriate action. First, document the defect and gather any related evidence. Then, contact the seller or their representative to discuss the matter. They might not be aware of the defect, or they might be willing to rectify the situation or negotiate a resolution.

If the seller is uncooperative or if the defect was not disclosed during the buying process and you believe it should have been, you should consider consulting with a real estate attorney. LegalMatch is a good platform for finding experienced attorneys who can help you navigate the situation. They can evaluate your case, guide you through your legal options, and represent your interests in any potential dispute or lawsuit.

Remember, it’s important to act quickly in these situations, as there may be time limitations on filing a legal claim. By promptly seeking professional advice, you can protect your rights and potentially rectify the situation.