Buying a home is an exciting time for purchasers. But is can also be unnerving. Buyers must be diligent and careful in making a purchase. Sometimes, a seller or realtor will make misrepresentations in real estate sales in Virginia to induce buyers to purchase. These misrepresentations may be intentional or negligent. Often, buyers do not discover the misrepresentation until after they are in the home and have been living in it for a number of weeks or months. Buyers have recourse for these misrepresentations, but they must fully understand the facts and law in order to have a successful outcome.
In Virginia, residential real estate purchases are almost always “as is” sales, meaning that a buyer takes the home as it is and must conduct due diligence in performing the necessary research and inspections to determine any issues with the property. This is also tied to the doctrine of “caveat emptor” (which means “buyer beware”) that puts the burden on the purchaser to identify any defect that could be reasonably discovered through investigation. Generally, buyers should be zealous in conducting home inspections, researching the title to the property and adjacent parcels, and doing all things prior to signing the purchase agreement and closing to reveal any possible problems with the home.
Still, many buyers find themselves without having done such inspections due to a misrepresentation by the seller or the seller’s realtor. Perhaps the seller made a representation about the zoning of the property that the buyer would have no reason to discredit. Or possibly the seller told the buyer that there were no issues with termites when the owner actually knew there was a severe termite problem. There are exceptions to the “as is” doctrine when a seller fraudulently induces a buyer to purchase. The buyers must show that the representations diverted them from making inquiries that normal prudent buyers would otherwise make.
To show fraud, a buyer must prove that the owner made a false representation of a material fact intentionally or knowingly with intent to mislead, coupled with reliance by the buyer and damages suffered by the buyer. Alternatively, a buyer may show that the owner made a negligent misrepresentation, meaning that the buyer doesn’t have to prove that the false statement was made intentionally; the standard of proof is higher for this allegation. In other words, the seller made a statement he should have known was wrong or without proper knowledge.
Buyers must note that any publicly-recorded documents may affect a claim of fraud. If there is a document in the land records of the county or city, the Court will generally consider the public at large to have “constructive notice” of the content of that documents. This means that, if there is a document in the records that could have informed the buyer about the facts the buyer asserts were misrepresented, the Court can rule that the buyer had notice of those facts, even if the buyer never actually saw the document. Essentially, the buyer should have looked, and if he did, he would have realized the facts and utilized them to inform his decision.
If you are a buyer and feel like your seller misrepresented certain facts to get you to buy the home, we can help you determine your options. If you are a seller and are being accused of a misrepresentation, we can help you defend the sale. Either way, we stand ready to help you in a situation involving misrepresentations in real estate sales in Virginia. Call for a consultation – 757-645-0827
Gregory S. Bean is a real estate attorney at Collins & Hyman, representing buyers and sellers in matters involving misrepresentations in real estate sales in Virginia.
The material in this post is for informational purposes only, and readers should not utilize it as legal advice. In order to properly analyze the contents as related to your specific circumstances, a consultation would be necessary.