The seller’s disclosure notice is almost always Exhibit A in lawsuits against sellers and listing brokers. To understand why, we need to examine the normal factual background and the legal basis for misrepresentation claims.
FACTUAL BACKGROUND AND CAST OF CHARACTERS
The buyer and seller close on the sale of the property and, at some point after closing the buyer discovers a problem with the property, and they claim it was not properly disclosed to them. Some common examples of defective property conditions that lead to lawsuits are water leaks in the roof and/or windows and foundation movement.
You may wonder how a buyer knows whether the seller was aware of the defective condition? Good question. Buyers frequently talk to their new neighbors and sometimes they are told the defective condition was also a problem for the seller before they sold. The buyers feel as if they have been deceived, so they retain a lawyer to sue the seller, the listing agent, their own agent and the inspector.
Buyers can bring many different legal claims including fraud, negligent representation, and violations of the Deceptive Trade Practices Act. In fact, the Texas Legislature drafted a statute specifically designed to help buyers who find themselves in this position, called the Fraud in a Real Estate Transaction. These claims, while separate, all share a common concept — misrepresentation. In other words, for the buyer to prevail, they must prove the seller and/or listing broker made a material statement that was false.
Therefore, we know most residential real estate lawsuits stem from a representation regarding a defective property condition that was not true. The disclosure notice is the document that contains the most, if not all, the seller’s representations about the property’s condition. In fact, the disclosure notice contains over 100 representations about the property. Due to the sheer number of representations on the disclosure notice the fact that some of the questions on the disclosure notice are not exactly clear or easy to understand, sellers frequently make mistakes…which leads to inaccurate disclosure and cause serious issues for both buyers and themselves.
With some commonsense guidance these mistakes can be easily avoided. This is exactly why Sellers Shield was founded. Our Smart Seller tools guide sellers through the disclosure process so they can learn from all the mistakes I have witnessed in my more than 18 years of representing brokers, agents, sellers, and buyers.