Lawyer Listings Add, Update, or Remove Listings

Seller Disclosure Duties

What a seller of a home must tell a buyer about the property - known material defects, water intrusion, structural and system problems, and under federal law lead-based paint - the state disclosure forms, the "as is" sale, and what a buyer can do when a problem was concealed.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

The old rule was that a buyer took a property with whatever defects a reasonable inspection would reveal and the seller need say nothing. Every state has moved away from it. Most now require a seller of residential property to complete a statutory disclosure form before the contract is signed, answering questions about the roof, foundation, plumbing, electrical and heating systems, water damage and flooding, pests, environmental hazards, boundary disputes, additions built without permits, and whether the property is in a homeowners' association or a flood zone. The form asks what the seller actually knows; a seller is not required to inspect or to guarantee the property's condition, but is required to answer honestly and to update an answer that becomes untrue before closing.

Independently of the form, the common law in nearly every state makes a seller liable for fraudulent concealment of a known material defect that the buyer could not reasonably discover - a basement that floods every spring behind fresh paint, a foundation crack behind new panelling - and for a misrepresentation the buyer relied on. Real-estate agents carry their own duty to disclose material facts they know. A few categories are excluded from disclosure in many states: that a death, a crime or an alleged haunting occurred on the property, or that a prior occupant had a particular illness. Some states permit an "as is" sale to limit the seller's liability for the property's condition, but no state reads "as is" to license active concealment or a false answer on the form.

Federal law adds one requirement for any housing built before a stated year: the seller must disclose known lead-based paint and lead hazards, provide the federal pamphlet and any reports, and give the buyer a period to conduct a lead inspection, with the disclosure recorded in a signed attachment to the contract. A buyer who discovers a concealed defect after closing may rescind the sale in some circumstances, or more commonly sue for the cost of repair or the loss in value, and the state form usually sets its own limitation period for those claims.

Where this comes from

Seller-disclosure statutes are enacted state by state - California's Civil Code §§ 1102-1102.19 (the Transfer Disclosure Statement) and Texas Property Code § 5.008 are two of the older models - and the common-law claims for fraudulent concealment and negligent misrepresentation are restated in Restatement (Second) of Torts §§ 550-552. The federal lead-paint disclosure rule is section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4852d, implemented at 24 C.F.R. part 35 and 40 C.F.R. part 745, and applies to housing built before the year the statute names. Stigmatised-property exclusions and "as is" rules are each state's own.

When people hire a lawyer for this

A buyer who finds a defect the seller must have known about should photograph everything, stop any repair that would destroy the evidence, get a contractor's written opinion on cause and age, and see a lawyer before contacting the seller - the claim depends on proving knowledge and concealment, and the disclosure form, the listing and the inspection report are the exhibits. A seller filling in the form should over-disclose: an honest answer about a repaired problem is a defence, and a blank or a "no" about a known one is the whole of the plaintiff's case.

Find a lawyer for this in your state

Choose your state. Each link opens the directory page for the city in that state with the most currently published law firms in this practice area; a +n beside the city is how many other cities in the state also have one. The list is generated when this page loads, so a state whose listings have lapsed drops out rather than becoming a dead link.

« All glossary terms

Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.