Posts Tagged ‘home seller liability’

Can a Home Seller Be Sued for Contractor’s Knowledge of Problems?

Wednesday, November 1st, 2017

As a home seller it is imperative that you make sure you do everything you can to avoid lawsuits from your new buyers. Failure to disclose has been one of the most litigious causes of action in real estate law. Upon selling property, sellers must disclose all they know about the property according to state mandated forms – this usually includes past insurance claims, any upgrades or improvements, damage to the property, repairs, noise issues, and many other questions. Sellers must answer these questions to the best of their knowledge, and provide explanations and any necessary receipts to verify the claims. But what happens when other people who work on your home make a discovery that could render the home undesirable?

The most recent case, RSB Vineyards, LLC v. Bernard, was upheld by the California Court of Appeals. The court ruled that a seller must have had ACTUAL KNOWLEDGE to be held liable for non-disclosure, and a contractor’s knowledge is not imputed to the seller. In lay terms, this means that if a seller hires a contractor to do work, and the contractor discovers something about the property, the seller cannot be held liable unless the seller was made aware of the problem by the contractor.

In the lawsuit the contractor had converted a residence into a wine tasting room on vineyard property that was later found to be structurally unsound – the buyers found out after they purchased the home and had to demolish the structure. They sued the seller for failure to disclose. The contractor was found to have known about the problem but there was no “actual knowledge” by the sellers.

In many areas of disclosure here in California, the seller CAN be held liable for items about which they should have known. For example, if the sellers notice water stains on a ceiling of a room and do nothing about it, then have the ceiling painted prior to sale, without disclosing the stain…this would likely render the seller liable for failure to disclose, as the water stains obviously indicate some kind of problem. Note that had the seller disclosed the stain and not painted over it, s/he would not be liable. It would then be up to the buyer to investigate and ask for repairs if problems were discovered.

If you are selling a property it is very important to answer ALL questions on the disclosures to the best of your ability. Back up any claims with receipts, documentation, etc. I always tell my clients it is better to over-disclose. Put everything out there so that you do not have to worry about liability down the road. If you are made aware of any issues by a third party, make sure to include that in your disclosures so the buyer can look into it further.

If you are ever unsure of whether or not to disclose something, the rule of thumb is that you should do so. However, I suggest obtaining legal advice…or if your real estate agent happens to be an attorney that could help too 🙂

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Carbon Monoxide Detectors: Are Sellers Liable?

Wednesday, October 19th, 2011

You may or may not have heard that as of July 1, 2011 carbon monoxide detectors must be installed in every single family residence. So, what is your liability if you are a seller – do you have to install them before the close of escrow?

While it is true that carbon monoxide detectors must be located in every home, it is not a requirement to install them in order to close escrow. However, the seller is responsible for disclosing in the Transfer Disclosure Statement (TDS) whether or not the home has carbon monoxide detectors installed.

Keep in mind that if you do not install them in your home you are technically in violation of the law – but whether that would actually be enforced is anyone’s guess (I suspect local law enforcement officers have better things to do).

If you are a buyer and would like the seller to install the detectors during escrow you can ask your agent to write that into your contract. If you are a seller, my advice to you is to spend the money on carbon monoxide detectors and forget about it – there are some great deals if you check. I recently purchased a set of two for about $20.

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