Failure to Disclose

Schoech Law Group, PC provides extensive aid to property buyers in the event of non-disclosure. They will work diligently to pursue recompense for buyers whose sellers fail to disclose vital property information.

Disclosures are designed to let buyers make informed decisions about purchasing a property. Under California law Sellers are required to inform buyers of any and all known material or significant items that affect the value or desirability of the property. While this standard is somewhat subjective, there are certain items that must be disclosed as part of a Transfer Disclosure Statement (TDS) including, but not limited to, the following:

  • Significant defects/malfunctions with any building component
  • Hazardous materials such as lead based paints, mold, asbestos, etc.
  • Encroachments or easements
  • Room additions, structural modifications, or other alterations that are either unpermitted or not up to code
  • Fill (compacted or otherwise) on the property
  • Settlement, slippage, sliding or other soils problems
  • Flooding, drainage, and grading problems
  • Major damage to the property from natural disasters
  • Zoning violations
  • Neighborhood noise problems or other nuisances
  • The existence of CC&Rs
  • HOAs with authority over the property
  • Lawsuits involving the property

The TDS also requires that the seller disclose and includes any written expert assessments or inspections performed on the property and cannot omit information, nor can they provide false information to the prospective buyer.

A seller may also provide additional information through a Seller Property Questionnaire (SPQ) and, as a buyer of real property, you should always request that an SPQ be provided as it elicits responses to other statutorily or contractually required disclosures including the following:

  • The death of an occupant inside the property within the last 3 years
  • Methamphetamine contamination
  • The release of an illegal controlled substance on or beneath the property
  • Whether the property is located in or adjacent to an industrial zone ie. airport, and whether that industrial zone creates a nuisance
  • Whether the property is near a prison
  • Insurance claims affecting the property within the past 5 years
  • Material facts or defects affecting the property
  • Water related and mold issues
  • Pets which have lived at the property
  • Pest infestations

The SPQ also requires that the seller disclose all repairs and alterations to the property which is especially important when purchasing a home from a “flipper”. Often times a “flipper” extensively remodels and alters a property and merely states that the home was “completely remodeled” only for the buyer to later find out that the remodel only acted to conceal defective conditions. If buying a flipped house be sure to demand explanations and invoices relating to the remodel/repairs as you may discover “lipstick on a pig”.

In addition to the seller’s disclosure requirements, both the seller’s and buyer’s real estate agents/brokers have the obligation to perform a reasonably competent and diligent visual inspection of the readily accessible areas of the property and disclose all observed issues as part of the Agent Visual Inspection Disclosure (AVID Form). If you did not receive an AVID from both agents they may have liability for undisclosed issues.

Purchases considered “As Is” also need to have proper disclosure. If the seller of the property or the seller’s real estate agent do not disclose what is required by law, they are liable for damages that the buyer suffers.

If a seller fails to disclose any of the above issues or any other item that you believe to be material you may be entitled to recover for the diminution in value of the property. To learn more about your rights, contact our office for a case evaluation.

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