Northern Virginia: Examining Seller's Disclosure Obligations Latent Defects
Many confusing circumstances have surfaced lately with prospective clients who wonder what their obligations are in disclosing and/or disclaiming matters regarding residential real estate in Northern Virginia.
This discussion is focused on Northern Virginia and is experiential in nature, given my 16 years in this business. This discussion is NOT intended to provide legal advise or guidance. I am NOT an attorney and as such you should contact competent legal counsel for that advise and guidance.
This discussion is simply an examination of what my sellers often have to deal with when selling properties in Northern Virginia.
THIS Article is NOT LEGAL GUIDANCE or ADVICE!
OK, now that I have satisfied my attorney, LOL... The Virginia Residential Property Disclosure Act has gone through many editions and revisions. It is often difficult to stay on top of the changes because it varies and changes so frequently.
Contrary to most other states, Virginia is a "Caveat Emptor" state. Fancy legal jargon that basically means "Buyer Beware".
In most cases with several exceptions however, it is the buyer's obligation to satisfy themselves with the various conditions of the residential properties that they are buying in Virginia.
Conversely, most other states (like Maryland and the District of Columbia locally) have extensive consumer protections built into the law for home buyers, Virginia does not afford home buyers that same level of protection.
The discussions that follow will examine the Virginia "RESIDENTIAL PROPERTY DISCLOSURE STATEMENT NOTICE TO SELLER AND PURCHASER" document, that is required with almost all resale transactions in the state.
Seller's Disclosure Obligations General Conditions of property: (Source Document: Northern Virginia Association of Realtors, Virginia Association of Realtors, Virginia DPOR)
In Virginia, Sellers Usually disclaim most common easily inspectable or readily visible defects in a home under the provisions of the following paragraph in the Disclosure Notice(see above).
The above paragraph accompanies nearly all residential re-sale real estate transactions in Northern Virginia. Quite literally, it means that the seller is actually "Disclaiming" most of the material property conditions in the home and the buyer must satisfy themselves with their own research and hired experts to comfort themselves that the purchase they are about to consummate, is in fact acceptable to them.
The referenced document of Virginia code,"§ 54.1-500" further goes on to identify rather exhaustively, the many areas of expertise that are likely to be considering factors in a home purchase. Things like: General construction, engineering, zoning, asbestos, lead paint, lead water, sewer, well water, radon gas, USB's etc etc.
So in practice this means, that a buyer must rely on the hired industry experts in those fields to inform them of the conditions that may or may not exist in the home, before they finalize their purchase. But having said that, even these experts may not actually be capable of finding some home defects if they are actually hidden or inaccessible for inspection.
Latent Defects
The paragraph 1.(above), does have it's limitations however, and home owners can not "hide, conceal, or otherwise deceive a buyer about "Latent Defects". The website Wikipedia defines"Real Estate Latent Defect" as:
"In the law of the sale of ... real estate... a latent defect is a fault in the property that could not have been discovered by a reasonably thorough inspection before the sale.
... it is understood at law that (initial visual) inspection is not often sufficient to detect certain deficiencies in the product that can only be discovered through destructive testing or other means that a seller could not reasonably be expected to allow under normal conditions..."
Examples of some possible hidden "Latent Defects", might be water leaks in a ceiling or a foundation wall, hidden structural cracks, non-visible termite damage, or fire damage that has been covered up in some fashion.
In most circumstances, the obligation is that the seller must reveal all known existing "Latent Defects" to a purchaser and failure to do so could result in very serious legal consequences if a home seller is later shown to have hidden, obstructed, or failed to disclose those conditions to the buyer before the sale.
The moral of this story is "When in doubt about when and what to disclose, It is far safer to disclose, than to be penalized and held legally and financially liable for it later".
Usually, when I represent a home seller, in order to protect them from extremely costly possible future litigation, I will ask them to provide me with all the information they have regarding the "Latent Defect", describe it in detail and what they have done to attempt to remedy the issue.
I then produce a "Disclosure Package including other useful warranty, receipts, invoices for upgrades, instruction manuals and invoices on repairs" for the home buyer, that is then incorporated into the purchase contract in an informative and re-assuring yet non-threatening way.
I find more often than not, that doing this kind of pro-active comforting disclosure to a buyer, of all material condition(Latent and not), does far more to reassure and comfort the buyer that you are being honest and forthright, and demonstrates that you are not willfully attempting to sell them a "Lemon".
Having said that, "Latent Defects" are not all that common upon re-sale of a home. It is far wiser for a home seller to 
remedy and eliminate the condition and render the home free of the defect than to be subject to lawsuit, litigation, government penalties and full remediation anyhow at a later much more inopportune cost and date.
The next blog article on this topic will deal with Paragraphs 2 and 3 of the "RESIDENTIAL PROPERTY DISCLOSURE STATEMENT NOTICE TO SELLER AND PURCHASER" document, which deals with the topic of "ADJACENT PARCELS and HISTORIC DISTRICT ORDINANCES(S)"
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