The sooner a buyer discovers a defect in their home after closing, the more likely it is the buyer will believe that the seller or listing agent did not disclose something they should have.

The question presented in Virginia is one of disclosure obligations.

While legal counsel may always be sought after in these scenarios, the following is a general analysis and clarification of rights and duties. To start with, a buyer must understand the significance of caveat emptor – buyer beware! It is the buyer’s main duty to protect themselves. A buyer must discover for herself the true nature of the condition of a property in Virginia and make use of the means at hand to conduct thorough due diligence. In general, the law will not protect a buyer if a buyer does not take steps to protect themselves.

Buyers who believe that a seller must make disclosures about real property in Virginia can’t be blamed for thinking that such disclosures are substantive in nature. In fact, the form provided by sellers to buyers pursuant to statute says, “Residential Property Disclosure Statement.” Having seen that, what else is a buyer to expect but that an actual disclosure is being made. Contrary to common sense however, the disclosure is actually a disclaimer, the first provision of which states that the “owner(s) of the residential real property makes no representations or warranties as to the condition of the real property or any improvements thereon. . .” A seller actually disclaims making any statement or disclosure about the condition of their property. While the seller may not have a proactive disclosure obligation, a seller may not frustrate or impede a buyer’s ability to discover for themselves the true condition of a home.

A Listing Agent’s obligation is to disclose all material, adverse, facts, pertaining to the physical condition of the property of which they have actual knowledge. This is a proactive obligation. One would be correct to observe that it is more likely that a listing agent may have a disclosure obligation to a prospective buyer than the seller. But make no mistake, the bar is set high to trigger a Listing Agent’s disclosure. All of the above elements (material, adverse, fact, physical condition of property and actual knowledge) must be met.

In conclusion, most buyers find themselves on the wrong end of the law with respect to property condition issues after closing, unless a buyer can prove the elements to trigger a Listing Agent’s disclosure or prove that a seller essentially committed fraud.