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Duty to Disclose Defects Lawyers

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Do I Have to Inspect my Property for Defects Before Selling?

Generally, a seller only has to disclose defects that are within the seller's personal knowledge. Sometimes state law will have a list of potential defects that a buyer must be aware of before selling her property, so it is best to check your state's property and real estate laws before selling your house.

A seller is not required to bring in a general contractor to look for defects, but may choose to do so to become aware of all defects and potential cost of repairs. A general contractor can help you prepare any required disclosures.

What Does the List of Possible Defects Include?

The rule is that when in doubt, disclose the information. In general though, sellers should disclose:

  • Physical condition of the property
  • Existence of dangerous materials or conditions
  • Lawsuits or other investigations against the property which may affect its value
  • Any other factors which may influence the buyer’s decision. 

Is the Seller Responsible for Defects?

The seller is only responsible for the defects he has knowledge of at the time of purchase. These defects are known as latent defects. Defects which the seller does not know about, but could discover if he made a reasonable search, are known as patent defects. The law does not require the seller to disclose these, unless the seller actually makes the search and is aware of these defects.

The seller is only responsible for latent defects. Buyers are the ones responsible for finding patent defects and making a decision about them.

Is the Seller Required to Disclose Facts Unrelated to the Physical Property?

If disclosing the fact would affect the value of the property, then yes. This includes past murders in the property or supernatural haunting. It does not matter if the buyer asks about these facts, as buyers cannot be expected to suspect that such events had occurred on the property. Discovering these facts however, might lessen the value that the buyer might derive from the property and thus the information cannot be concealed from the buyer.

How Do I Make the Disclosures to a Buyer?

Disclosures of defects by the seller to the buyer must be made in writing. Generally, states have individual forms that a seller must fill out for disclosure of defects as well as sign and date on the bottom. As a seller, you should make sure the buyer acknowledges receiving these forms by signing their name and dating the forms.

What Should I Do as a Seller Accused of Failing to Disclose?

You will probably want to consult a real estate attorney. In most states it is considered fraud not to disclose all material defects when you are selling your house. An experienced real property lawyer can advise you of your rights and any potential defenses you might have.

What Should I Do if I Bought a House and Discovered Undisclosed Defects?

You may want to contact a real estate attorney. In a lawsuit against the seller you may be entitled to compensation for any necessary repairs. An experienced real property lawyer can advise you of your rights and represent you in court.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 01-12-2015 02:24 PM PST

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