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News & Info

When in Doubt: Disclose

Sep 22 2017

Written by Jason C. Henbest, Esq. and Brittany Saxton


At common law, home purchases were originally governed by the principles of caveat emptor, a Latin phrase that means “let the buyer beware.” In practice, this phrase essentially means the property would be sold “as is” and it was not the seller’s obligation to inform the buyer of any defects. The law has evolved from caveat emptor, leaning more in favor of having the seller disclose any material defects to the buyer. Now, when asked about any material defects in the home, a seller has a duty to reply truthfully. Known as caveat venditor, this Latin phrase means “let the seller beware.” In order to ensure fairness, the law provides that the seller cannot purposefully mislead the buyer in a home purchase. Even evasive answers and mere silence to a buyer’s question can amount to a violation of the seller’s duty.

In addition to replying truthfully to buyer’s questions, the seller also has the duty to disclose stigmas which could impact the value of the property. Stigmatized property includes any living space in which there has been a suicide, murder, cult activity, AIDS, and even the presence of a poltergeist. When selling a home, think about what information you may want to know if the roles were reversed (i.e., if you were the purchaser). Ultimately, a good rule of thumb for selling your home to potential purchasers is: when in doubt, disclose.

A common question for sellers is where to draw the line between a defect and natural wear-and-tear to the property. As is expected, deciding whether to disclose information largely depends on the jurisdiction in which you reside, and the advice you receive from an experienced real estate attorney. For further guidance on real estate disclosure in home sales, contact your local real estate attorney today.


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