Sellers are required to release information known to them when they sell their home. Failure to make such disclosures or intentionally trying to cover up defects with the property can void the transaction or hold the seller liable. When the seller intentionally withheld information from the buyer, which caused the buyer to concluded the purchase, they can be liable. Non disclosure of property defects can disrupt the property value of the home and can cost thousands in recovery. If you detect or discover defects against the property after the purchase was concluded then you may be entitled to damages.
What to do if Seller has “failed to disclose” defect?
If it has been determined that the seller failed to make a material disclosure regarding the health of the property, courts will allow certain remedies. A buyer will be permitted to file a for a rescission of the entire contract. This will permit the buyer to rescind or cancel the entire sales contract. The buyers second option is to either affirm or validate the agreement and subsequently sue for any damages.
If you elect the first option then it is unlikely to bring a cause of action for damages. However, many buyers are not made aware of the property issues until a later time. At this time the time their opportunity to bring a cause of action has lapsed and they are required to sue in order to protect their rights.
Each of these options need to be closely examined in order to determine which is the best fit. A qualified attorney at Downtown LA Law dealing with non-disclosure issues with real estate transactions can assist you.
Seller’s Duty to Disclose Defective Home or Toxic Mold
Sellers are charged with a statutory or mandatory duty to disclose information regarding the structural health of the property. They are not permitted to withhold information they know to be material to aiding the buyer in making their decision.
What is considered material with regards to the purchase of the property? Material defects can include the following:
Each of these issues can be serious and cause substantial damage to the property. For example if your property has covered leaks which were not disclosed, this can lead to mold infestation. Mold infestation can be expensive, timely and hazardous to remediate. Often times multiple experts are required to test the mold and conduct proper remediation techniques. Additionally, any mold infestation can cause future diminution of property values. Once it is known by the buyer through subsequent investigation that mold is discovered or any defect on the property is discovered, the buyer will be required to disclose these defects to any future or potential buyer should they decide to sell the property.
Sellers often improperly believe that because an “As Is” clause is inserted into the agreement that they are free from any future liability. This is incorrect. As is clauses have a limited effect on relieving the seller of liability. In fact these clauses merely refer to what is “visible” or “observable” at the time of purchase.
In other words hidden defects not noticed by the buyer at the time of purchase are not valid to absolve the seller of liability. Thus, because a “as is” provision is included in the sale agreement does not mean that the property is sold with all material issues.
If future issues are discovered and it is determined that the seller knew of the defect at the time of the sale they will be liable for the injuries.
Another issue when dealing with seller non-disclosure issues is whether the reduced sales price was an indication that the property was in a defective condition. Sellers often reduce the price of the home when there is a defect which they do not have the funds or talent to repair. In such cases they attempt to sell the property “as is” with all material defects. However, the reduced price does not relieve the seller from liability. In such cases they are still charged with a duty to disclose even if the purchase price reflects a below market price.
Liability of Parties
Who is liable? In real estate transactions there are often times multiple parties involved in the sale. They include the brokers, agents, inspectors, environmental specialist and of course buyers and sellers. Depending on the extent of knowledge each party can be held liable.
When parties involved in the transaction collude or work together with the intent to defraud or deceive the buyer, then liability may be imputed to all parties. For example if the inspector omitted information regarding defects in order to further the sale they may be liable. If the agent or broker failed to inform the buyer of defects they knew about at the time of the sale they may be held liable.
It is important to properly determine who was at fault and determine which parties have knowledge of the information.
Residential v. Commercial Sales
Residential properties are given different considerations then commercial. When purchasing a commercial property buyers are charged with a higher degree of sophistication. Residential buyers are not set by the same requirements. Thus, when you purchase residential property you are given more rights. It is important to discuss these issues with a qualified real estate attorney to determine whether you have a cause of action.
Recovery for damages can include a number of different factors. You will likely be able to recover for the cost of repair, remediation and other damages incurred as a result. It is important that all future and past damages be considered. These damages can be substantial depending on how serious the defects are and the cost of repair.
Downtown LA Law can assist you with better understanding your recovery options and selecting the best source of recovery. Contact our offices for a free case evaluation. (385) 285-2529