Failure to Disclose

Attorneys Real Estate Group

We Handle Real Estate Contracts, Builder Disputes, Failure To Disclose & More..

“A failure to disclose happens when a residential, commercial, or industrial real estate buyer does not receive appropriate disclosures. Find out what a real estate failure to disclose lawsuit is and how Attorneys Real Estate Group can assist you.”

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Failure to Disclose

A lot can go wrong during a real estate transaction. The worst of all is the failure to disclose a material fact concerning the property being transacted by the seller and his agent and broker. Whether deliberate or unintentional, being a material fact alone is enough to construe the effect it may have on the value or desirability of the property.


What is a failure to disclose?

The term ‘failure to disclose’ is significant in real estate law. ‘Failure to disclose’ means an act of a seller to refuse to provide or disclose essential information about a property to a buyer.

What qualifies as essential information is any potential problem and material defect that could easily affect the value of the property being transacted. Real estate transactions require the seller and his agent and broker to make full material disclosures about the property being sold.

Failure to disclose when selling a house: The seller should make and provide all necessary disclosures to the buyer before closing the real estate deal. If not done, this amounts to a failure to disclose the violation and a breach of contract by the seller.

A failure to disclose real estate or conceal material facts related to a property is a serious law violation. Failure to disclose means that the seller has breached his contractual obligations. The duties of a seller require that he/she act in good faith and deal fairly in all matters of the real estate transaction.

Besides the seller, real estate agents and brokers also have the same responsibility to the buyer. In their capacity, they should also act to prevent any failure to disclose violations.


Reason for real estate property disclosure

The reason for providing the real estate property disclosure is simple. It is to inform a prospective real estate buyer with complete knowledge about the state and condition of the property.

Being complete means having the potential to alter the decision of the buyer to either continue with the purchase or obstruct the deal.

Therefore, to validate the reason for real estate property disclosure, it is essential that –

  • The seller provides all necessary disclosures before the closing of the sale, and
  • Disclosures are in writing and duly signed by the seller and the buyer.



Types of real estate disclosures that a buyer and a seller should be aware of

Depending on state law, every real estate transaction could require several disclosures.

What happens if sellers don’t disclose something? A real estate buyer’s right is to ask and receive all the necessary disclosures that could affect his buying decision. A seller must disclose all the relevant information that could affect the value of the real estate property.

Some of the common real estate disclosures that a seller should make are discussed below –


1. Any nuisance in the neighbourhood

This generally covers information about any nuisance in the vicinity or surrounding area of the real estate property.

A nuisance is anything that appears from a source outside of the property and which may disturb the property holder.

Different states require different kinds of neighbourhood nuisances. Examples could be odours or noises from nearby industrial or commercial properties. Due to this, some states also require disclosing the source or possible source of nuisance. This may include an airport, landfills, shooting range, farms, etc.


2. A death in the home

Disclosing about any deaths at the property is also a common form of disclosure required in real estate. Some buyers are sensitive and could have concerns or superstitions about a property where someone died.

However, this disclosure requirement also varies depending on the circumstances of the death. For example, some states may not require disclosure of death due to a natural cause or an accident.


3. Presence of potential harm or hazard

Informing the buyer that there can be a potential cause of harm or hazard on the property requires a disclosure. Such harm or hazard could be both man-made and natural. Such factors mean that the property or its occupants might face any damages in the future.

For example, property in an agricultural vicinity, wetland, or contamination due to toxic material.


4. Repair the history of the property

Damages occur, and corrections in response to such issues can imply an increase or decrease in a property’s value. Thus, repairs or renovations undertaken on the property require a disclosure.

Revealing a property’s repair history also helps buyer-appointed property inspectors pay close attention to riskier factors.


5. Damages due to water

Had there been any water damage on the property, it requires disclosure. This could be due to plumbing faults, rainwater coming in through leakages in the roof, water from floods or downpours filling in the basement, etc.

Water damage could result in loss of possessions and even erode a residential property’s structure.


6. Bankruptcy and property liens

Real estate property sellers must also disclose issues regarding bankruptcy and property liens. For example, if they have filed for bankruptcy and are awaiting the decision of such litigation. According to the court’s decision, the buyer should know whether the selling property can become part of any repayment plan.

Similarly, disclosure about any property liens outstanding on the real estate being sold is also required. Failure to disclose can result in the buyer becoming part of a lengthy suit to win his right to take control of the property.


7. Information regarding any homeowner’s association

If a residential property falls within the ambit of a Homeowner’s Association, such information requires disclosure. Generally, homeowners’ associations have a defined set of bylaws and membership rules binding on all residents.

However, any interested buyer of a residential property may have reservations about it. Thus, a buyer should have prior information about such issues.


8. Disclosing a list of items

Besides all the above, a misunderstanding could exist between the buyer and the seller on what items come included with the property. This means that the buyer may find something missing that he otherwise assumed to have received with the property.

For example, any fixtures, fittings, electric appliances, and furniture used to showcase the property for open-house tours.

To prevent such issues, some state laws require disclosing what items are included with the property.


9. Any other possible disclosure

Based on the premise that a specific non-disclosure could impact the value of and the decision to buy a property, mentioning all such relevant disclosures is mandatory.

For example, failure to disclose real estate pest infestation in the past in the area where the property is located.


How to make real estate disclosures?

What is failure to disclose information? A real estate disclosure is a written document that encloses the details of all the material facts in the seller’s knowledge. They should be promptly provided before the closing of the real estate deal. Doing otherwise, such as in an untimely or late manner, is deemed a failure to disclose the violation.

Some states have properly designed forms for this purpose, which the seller and the buyer must sign and date.

For example, California requires sellers to provide the buyer with the Real Estate “Transfer Disclosure Statement (TDS)”. TDS is a comprehensive document that enlists disclosures of material facts with their details.

Nonetheless, even if your state does not have any designated form for property disclosure, the provision of real estate disclosures should be written. Further, a seller should get a written and signed statement to confirm that the buyer has received the disclosure document.

In any case, remember to consult a real estate attorney while drafting a real estate disclosure. This will help avoid a mistake that could later become your liability.


Real estate attorney guiding a client on real estate failure to disclose lawsuit.

Real estate attorney guiding a client on real estate failure to disclose lawsuit.


What is the statute of limitations on real estate disclosures?

A statute of limitation means that a person has the time frame to seek compensation for the damage of an unfavourable real estate transaction. Statutes of limitations are in all states and part of Federal law. The statute of limitation sets the time frames for filing civil actions. After the statute of limitation has expired, also known as “run”, the right to file a lawsuit will be available, and the claim can’t be made. 

Therefore, it is essential to be aware of the statutes of limitations that apply to all actions, particularly those arising from transactions, real estate contracts, and litigation.

Suppose there’s a disagreement about buying real estate or a transaction. For example, if the seller didn’t tell us about problems or essential facts, These could affect the value or desirability of buying the house. Or if you need help with the building’s construction or nearby area. In that case, it is essential to be aware of limitations, periods, and times that could lead to the claim being void because of the passing of time.


How do you prevent a failure to disclose a violation?

Below are a few questions and answers that can help prevent a failure to disclose violation. Under general circumstances, these questions are based on the real estate seller’s part.

The exact nature and extent of these questions will vary according to your state’s law. Therefore, seeking professional guidance from a real estate attorney is better.


1. How do you discover material defects in a real estate property sold to avoid failure to disclose violation?

The general criteria to prevent a failure to disclose violation is for the seller to disclose only the known facts. However, a state might have specific guidelines requiring a stricter pursuit.

For example, hiring an inspector to identify specific nature issues within a property.


2. Is hiring a property inspector necessary if the state does not require it?

It isn’t unnecessary when a state does not require any property seller to hire a person for his real estate inspection. Nevertheless, getting an inspection before selling your property is always good.

But getting a property inspection done is just like tossing a coin, in which case you never know which side it will land on.

This is because the outcome of a real estate inspection can differ from what you anticipated. Instead of being a source of reliability and an attempt to gain buyer confidence and a higher price, it could be otherwise.

It could bring into your knowledge a material fact that may affect the property value and thus require full disclosure. And since you now know about it, a non-disclosure would mean a breach of contract on your part.

Therefore, carefully consult a real estate attorney about whether to hire a property inspector.


3. Is repair necessary once an issue is identified in a property inspection?

Depending on the severity of the issue found, a state might require the seller to undertake necessary repairs. However, most state laws only require disclosure, and no repairs are mandatory upon the seller. A real estate attorney could better guide you on what and how your state prescribes to treat such issues.

Still, an issue requiring a disclosure could mean a possible change in the property’s value. Therefore, the seller must decide what to do if the state’s law is silent. He can sell the property at a reduced price or make corrections and get a better price.


Types of claims in case a seller fails to disclose

A buyer can make three claims when a seller fails to disclose a violation. These are –

  1.       Breach of contract
  2.       Misrepresentation
  3.       Non-disclosure


1. Breach of contract claim

Most residential home sale contracts have provisions related to the “Seller’s Property Disclosure” form. Therefore, this is a contractual agreement on the seller’s part and requires him to fill it accordingly. Failure to do this means a breach of contract.


2. Misrepresentation claim

Misrepresentation claims are made when the seller acknowledges something that isn’t true.


3. Non-disclosure claim

Non-disclosure claims are made when it is believed that the seller remained silent about something he was obligated to disclose.


Types of damages awarded in a real estate failure to disclose lawsuit

The best choice is to consult a real estate lawyer upon finding a real estate failure to disclose a violation. Your lawyer will guide you on the extent of the matter and what possible recourse you have against the seller. Usually, damages are financial benefits awarded to the buyer as compensation for his/her sufferings.

The types of damages awarded in a failure to disclose lawsuit are –


1. Compensatory damages

These relate to any out-of-pocket expenditures the buyer incurred to make good the defect in the property. These also compensate the buyer against any reduction in the property’s value due to the non-disclosure.


2. Punitive damages

As the name suggests, these damages punish the seller, agent, and broker involved. These are awarded in addition to compensatory damages. However, this case requires the buyer’s lawyer to prove that the violators deliberately concealed material facts.


3. Rescission or rescinding the contract

Although rare, a buyer could be awarded the opportunity to rescind a real estate contract. This means the seller returns his property, and the buyer is returned with the complete purchase price. Such a decision intends to put the buyer in the same position as if no transaction had occurred.


Suing Seller for non Disclosure

You can take action against the seller for not disclosing defects if you can show that the seller was aware of the defect but chose not to make it clear.

Many sellers are unaware of any defects. Sometimes, they employ tactics to hide the issue, such as repainting the house or installing new carpet. They may pass the faulty house to a buyer who needs to be made aware. Sometimes, they get away with it and leave you with repair expenses. In addition, hiding potential defects is morally wrong, but it’s also illegal.


Real estate lawyers near me

As discussed above, dealing with a real estate failure to disclose a violation can be complex and complicated.

If you are a real estate seller, you should take every possible measure to prevent its occurrence. Depending on its nature, a failure to disclose a violation can become your worst nightmare, resulting in huge liabilities.

As a buyer, it is your right to receive complete disclosures before closing a real estate transaction. However, any situation where a buyer discovers a failure to disclose a violation after the sale agreement requires prompt action.

This is because the Statutes of Limitations Act may result in dismissing a real estate failure to disclose real estate law. Therefore, filing a real estate failure to disclose a lawsuit requires timely action.

All this concludes that hiring an expert real estate attorney by both a seller and a buyer is a must.

Attorneys Real Estate Group specializes in matters related to real estate failure to disclose lawsuits. We have tons of experience and know precisely what you want. Like you, we have served numerous clients in getting the best possible favourable outcomes in failing to disclose litigations.

Simply call us at 916-671-3138 or visit our website at Attorneysre.comYou can also get free legal consultation by filling out the form at this link. One of our attorneys will get back to you quickly and gladly assist you.

We look forward to welcoming you soon.

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